United States v. Jose Agustin Benitez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 7, 2007
No. 06-13833 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00232-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AGUSTIN BENITEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 7, 2007)
Before TJOFLAT, BIRCH, and BLACK, Circuit Judges.
PER CURIAM:
Jose Agustin Benitez appeals his conviction, entered after a guilty plea, of
Count Three of the indictment against him, which charged that he and his brother
possessed a firearm during a drug trafficking offense in violation of 18 U.S.C. §
924(c). On appeal, Benitez argues that the district court violated Federal Rule of
Criminal Procedure 11 (“Rule 11") by failing to ensure that he adequately
understood the nature of the charge contained in Count Three. Benitez argues that
his guilty plea was not knowing and voluntary because the district court did not
explain to him how he could be found guilty of this charge under a Pinkerton 1
theory of liability, through which Benitez, as a co-conspirator, could be convicted
of possessing a firearm if it was reasonably foreseeable that the firearm would be
present during the drug trafficking offense. After a thorough review of the record
and the parties’ briefs, we AFFIRM.
I. INTRODUCTION
A federal grand jury indicted Benitez for: (1) distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), and 18
U.S.C. § 2 (Count One); (2) possession with intent to distribute 50 grams or more
of methamphetamine and 500 grams or more of a mixture or substance containing
1
See Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84 (1946) (a
party to a conspiracy may be held responsible for substantive offenses committed by a
co-conspirator in furtherance of the conspiracy, even when he did not participate in the
substantive offenses or have any knowledge of them).
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methamphetamine, in violation of Title 18, U.S.C. §§ 841(a)(1), (b)(1)(A)(viii)
(Count Two); and (3) possession of a firearm during a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count Three). Without the benefit of a written
plea agreement, Benitez entered a plea of guilty as to all three counts.
At the plea hearing, Benitez testified that he had only a first-grade education,
his native language was Spanish, and he understood “very little” English. R3 at 7.
Counsel for Benitez withdrew a previous motion to withdraw from the case, and
the district court established that Benitez was satisfied with his counsel’s
representation. When the district court inquired as to whether Benitez wished
anything more of his attorney, Benitez stated, “Well, I just told him that I wanted
the pistol business to be dismissed, but there’s no way of doing that so . . . I spoke
to him but nothing could be done about it, so it’s okay.” Id. at 9. The following
brief exchange took place at this point:
COURT: Do you need any additional time before I go
forward?
BENITEZ: Well, it depends on [my attorney], anyway.
I want to plead guilty.
COURT: Well, that’s your right, your decision.
BENITEZ: Well, I do want to plead guilty.
Id. at 9-10. According to the record, Benitez had consulted with his attorney on
five or six occasions, where they discussed the case, the indictment, and the
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elements of the offenses, evaluated the evidence, considered the Pinkerton theory
of liability, and talked about his decision to plead guilty. The district court
confirmed that an interpreter had been present for these meetings.
The district court then instructed Benitez about the sentencing process. At
one point during this discussion, the district court asked Benitez whether he
understood that the Probation Office would issue a presentence investigation report
if he pled guilty, to which Benitez responded, “Okay. I will plead guilty.” Id. at
16. The district court then instructed Benitez on the maximum and minimum
sentences for Counts One and Two. The district court proceeded to instruct
Benitez with respect to Count Three, and the following exchange occurred:
COURT: All right. As to Count Three of the
indictment, I am advised and I now instruct
you that you face a minimum mandatory
sentence of five years up to life
imprisonment, a $250,000 fine, three years
of supervised release, and $100 special
assessment. Do you understand that?
BENITEZ: Yes, I understand.
COURT: This is the gun charge; do you understand?
BENITEZ: Yes. But I wanted to know, are you going to
charge me with a pistol? My brother has
already pled guilty.
COURT: Count Three, as I indicated, charges that you
and your brother together knowingly
possessed a .45 caliber Colt handgun in
furtherance of a drug trafficking offense.
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Id. at 23-24. Counsel for Benitez then explained to the court that Benitez was
pleading guilty to Count Three under the Pinkerton theory of liability. As defense
counsel explained, under this theory, Benitez could be found guilty under Section
924(c) for possession of a firearm during the commission of a drug trafficking
offense, even though he did not actually possess the firearm or have any actual
knowledge that a firearm was present.
At the request of the district court, the government set out the underlying
factual basis for the indictment. On 31 May 2005, Benitez sold approximately one
pound of methamphetamine to an undercover officer. A few days later, he
arranged to sell the officer three pounds of higher quality methamphetamine.
Benitez arrived at the meeting location at the pre-arranged time, accompanied by
his brother, Jose Luis Benitez. After Benitez showed the undercover officer the
methamphetamine, several officers approached the vehicle, at which point Jose
Luis Benitez reached down between the center console and the passenger seat
where he was sitting. The brothers were arrested, and the authorities discovered a
loaded handgun in the vehicle, between the center console and the passenger seat.
In post-arrest statements, Benitez admitted to selling and delivering the
methamphetamine, but denied knowing that the gun was in the vehicle.
The district court then expressed skepticism about accepting a guilty plea to
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Count Three since Benitez denied knowledge of the firearm. Both the government
and counsel for Benitez explained to the district court their understanding of
Pinkerton liability, and stated that Benitez could plead guilty to Count Three under
such a theory even though he did not actually possess the firearm or know it was
there. During this discussion, Benitez’s attorney explained that he wished to use
the Pinkerton theory in this case because, by denying actual possession of the
firearm, Benitez potentially could receive a safety-valve reduction to his sentence.
The government agreed not to object to a safety-valve reduction and also agreed
with defense counsel's explanation and application of the Pinkerton theory.
The district court then continued to instruct Benitez on potential sentences
and the consequences of his plea, and Benitez informed the court that he
understood everything that was being told to him. The court then asked whether
Benitez understood that he had a right to a trial by jury if he decided not to plead
guilty, to which Benitez responded, “No. I’d rather plead guilty.” Id. at 38. The
district court continued to explain the rights that Benitez would be forfeiting by
entering a guilty plea and asked him whether he understood, to which Benitez
replied, “Okay. I’m not going to trial.” Id. at 39. In response to the district court's
continuing explanation as to the consequences of the plea, Benitez stated, “Well, I
don’t know anything – I don't know anything about laws. Only my lawyer can tell
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me something.” Id. at 40. Benitez then asked permission to ask his attorney a
question, which was granted, and he then said, “Yes, I’ll plead guilty.” Id. After
reciting the elements of the first two counts, the district court then recited the
elements of Count Three as follows: “That on or about April 4th, you knowingly
possessed a .45 caliber Colt handgun in furtherance of the drug trafficking offense
described in Count Two. Do you understand that?” Id. at 44. Benitez replied,
“Yes. I understand.” Id.After the government recited the factual basis underlying all three counts,
Benitez admitted that the government’s testimony was accurate, and counsel for
Benitez suggested that the facts likely were sufficient to establish liability under
Pinkerton. In order to clarify Benitez’s knowledge with respect to the gun, the
district court engaged in the following colloquy:
COURT: Mr. Benitez, as to Count three, the gun
charge, did you know the gun was in the
car?
BENITEZ: No.
COURT: But you understood, did you not, that your
brother may have placed it there?
BENITEZ: Well, he came there from work and he said
that he carried it with him, but he didn't tell
me anything. He told me nothing.
COURT: Why was he with you that day on April 4th?
BENITEZ: I invited him to the store.
COURT: All right. For what purpose?
BENITEZ: I told him I was going to go buy some beer.
COURT: Well, did he know that you were going to
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make a sale to the undercover detective?
BENITEZ: He realized it then when he saw it there. He
realized it when he saw it.
COURT: Does your brother normally carry a gun?
BENITEZ: He just had one.
COURT: I understand that. But does he carry a gun
with him on a regular basis?
BENITEZ: Well, he didn't tell me anything.
COURT: That's not what I'm asking. Does your
brother normally carry a gun with him?
BENITEZ: Yes. He had it on him.
Id. at 53-54.
The district court then proceeded to take Benitez's formal pleas as to all three
counts. After Benitez entered an unequivocal guilty plea as to the first two counts,
the following exchange occurred:
COURT: As to Count Three charging that you,
together with your brother, knowingly
possessed a .45 caliber Colt handgun in
furtherance of a drug trafficking offense,
how do you plead; guilty or not guilty?
BENITEZ: Well, the she[e]r truth is I don't know.
Regardless – well, one could see if they
could take away the gun from me. But I do
plead guilty to all of it. Everything.
COURT: Well, Count Three has not been taken away.
If you plead guilty, you will be punished by
law to a sentence of at least five years
consecutive to any sentence imposed on
Counts One and Two. Do you plead guilty
or not guilty to Count Three?
BENITEZ: As for the gun?
COURT: Yes, sir.
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BENITEZ: No. I'm not going to plead guilty.
[Discussion was held off the record.]
BENITEZ: Yes.
COURT: Yes, what?
BENITEZ: Yes. I do plead guilty.
COURT: Do you have any question about that? I
know you've conferred with your lawyer.
BENITEZ: No, no, not – that's it.
Id. at 55-56. The district court then found that Benitez knowingly and voluntarily
entered a guilty plea as to all three counts, that he understood the essential
elements of the offenses, and that his plea was factually supported. The district
court also remarked that:
[W]ith respect to Count Three, there has been some
discussion here this morning concerning this defendant's
criminal culpability. He has pled guilty without
equivocation. There is an independent basis in fact
supporting this charge . . . There is a basis in fact for the
jury to find constructive possession, as well as possession
as discussed by counsel under a Pinkerton or conspiracy
type presentation.
Id. at 57. The district court sentenced Benitez to a term of imprisonment of 96
months for Counts One and Two to run concurrently, and a term of 60 months for
Count Three to run consecutively to the sentences for Counts One and Two.
Benitez raised no Rule 11 objection during the guilty plea hearing. In this appeal,
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Benitez requests that we vacate his guilty plea to allow him the opportunity to
plead anew because the district court did not explain in detail how Benitez could be
found guilty of Count Three under a Pinkerton theory of liability.
II. DISCUSSION
When a defendant raises a Rule 11 objection for the first time on appeal, we
review that objection for plain error. United States v. Vonn, 535 U.S. 55, 59, 122
S.Ct. 1043, 1046 (2002); United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.
2003). Under plain error review, the defendant has the burden to show that there is
an: (1) error; (2) that is plain; (3) that affects substantial rights. United States v.
Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993). If these three elements are
met, the court may exercise its discretion to correct the error if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.(citation omitted). “[A] defendant who seeks reversal of his conviction after a
guilty plea, on the ground that the district court committed plain error under Rule
11, must show a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct.
2333, 2340 (2004).
“The district court's implicit factual finding that the requirements of Rule 11
were satisfied when it accepted the defendant[’s] pleas is subject to the clearly
10
erroneous standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th
Cir. 1990). To assess the effect of an alleged Rule 11 error, the reviewing court
must consider the entire record, not just the transcript of the plea hearing. Vonn,
535 U.S. at 74-75, 122 S.Ct. at 1055. After reviewing the record as a whole, we
will affirm the district court, “if the record provides a basis for the court’s finding
that the defendant understood what he was admitting and that what he was
admitting constituted the crime charged.” Lopez, 907 F.2d at 1099. In
determining whether there is a factual basis for a plea under Rule 11, “[t]he judge
must determine that the conduct which the defendant admits constitutes the offense
charged in the indictment or information or an offense included therein to which
the defendant has pleaded guilty.” McCarthy v. United States, 394 U.S. 459, 467,
89 S.Ct. 1166, 1171 (1969) (citation omitted). The standard for evaluating
challenges to the factual basis for a guilty plea is whether the district court was
presented with evidence from which it could reasonably find that the defendant
was guilty. United States v. Owen, 858 F.2d 1514, 1516-17 (11th Cir. 1988) (per
curiam). In advising a defendant of the nature of the charges against him, there is
no requirement in Rule 11(c) “that a district court must list each element of the
offense seriatim.” United States v. Wiggins, 131 F.3d 1440, 1442-43 (11th Cir.
1997) (per curiam).
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In this case, the record as a whole reveals that Benitez knowingly and
voluntarily entered a plea of guilty to Count Three. During the plea colloquy, the
district court carefully reviewed the charge contained in Count Three, the elements
of that charge, the factual basis for Benitez’s guilt under Count Three, the rights
Benitez would waive if he pleaded guilty, and the potential sentences he could
receive for all counts in the indictment. At the plea hearing, and throughout the
history of the case, Benitez was adequately represented by counsel. Benitez
testified at the plea hearing that he had several opportunities to discuss his case in
detail with his attorney, and he repeatedly expressed his desire to plead guilty to
all of the charges and not to go to trial.2
With respect to the Pinkerton theory, the district court questioned Benitez
about whether his brother knew that they would be making a sale of drugs to the
undercover officer and whether Benitez knew that his brother “normally carr[ied] a
gun with him.” R3 at 54. Benitez understood those questions and answered both
of them in the affirmative. We find that Benitez understood what he was
admitting, and, as we explain, what he admitted constituted the crime charged in
2
We recognize that, during the course of the plea hearing, Benitez also stated several
times that he did not want to plead guilty to Count Three and that he wanted the gun possession
charge to be dismissed. However, after further consultation with his attorney, he informed the
district court that he did not want to go to trial and wanted to plead guilty to all counts of the
indictment, including Count Three. The district court asked Benitez if he any questions or
objections, and Benitez replied that he had none. R3 at 55-56.
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Count Three. See Lopez, 907 F.2d at 1099. Further, the Pinkerton theory is not an
essential element of the offense charged in Count Three, it is only a theory under
which a court may find criminal liability. Cf. United States v. Camacho, 233 F.3d
1308, 1315 (11th Cir. 2000) (finding that “aiding and abetting is merely a theory
upon which liability may be based,” not an essential element of the charge of
possession with intent to distribute cocaine which must be explained to a
defendant). The district court did not reversibly err in its explanation of Count
Three to Benitez, or in its implicit finding that Benitez understood the charge to
which he was pleading guilty. Therefore, we find Benitez's plea was voluntary and
knowing.
Next, we find that there was a sufficient factual basis to find Benitez guilty
under Count III. Benitez and his brother were arrested in an automobile while
making a controlled sale of methamphetamine to an undercover officer, which was
the second such sale within several days. A loaded handgun was found between
the center console and the passenger seat, in close proximity to Benitez, who was
in the driver’s seat. Although Benitez consistently denied having actual knowledge
that the gun was present at the time, he testified at the plea hearing that he was
aware that his brother sometimes carried a handgun. Based upon our review of the
record, we find that the district court was presented with evidence on which it
13
could reasonably find that Benitez was guilty. See Pinkerton v. United States, 328
U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84 (1946). Even if Benitez was not actually
aware that his brother possessed the handgun during the controlled sale, there is
ample evidence to support the district court’s conclusion that it was reasonably
foreseeable to Benitez that his brother would possess a handgun during the sale of
drugs.
Finally, we find that Benitez failed to establish that there is a reasonable
probability he would not have pled guilty if the district court had thoroughly
explained Pinkerton liability during the plea colloquy. In Dominguez Benitez, the
Supreme Court recognized that when the record reveals strong evidence of a
defendant’s guilt, as it does here, involving controlled sales of drugs to an
undercover officer, a handgun found in close proximity to Benitez, and testimony
that Benitez knew that his brother sometimes carried a handgun,
one can fairly ask a defendant seeking to withdraw his
plea what he might ever have thought he could gain by
going to trial. The point of the question is not to
second-guess a defendant’s actual decision; if it is
reasonably probable he would have gone to trial absent
the error, it is no matter that the choice may have been
foolish. The point, rather, is to enquire whether the
omitted warning would have made the difference
required by the standard of reasonable probability.
Dominguez Benitez, 542 U.S. at 85, 124 S.Ct at 2341.
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In this case, we conclude that the district court’s choice not to parse the
details of Pinkerton liability during the plea colloquy did not affect Benitez’s
decision to plead guilty. The evidence against Benitez was strong, and, as defense
counsel noted at the plea hearing, Benitez’s plea afforded him the significant
benefit of a two-level safety-valve sentencing reduction and a three-level reduction
for acceptance of responsibility and timely notification of intent to plead guilty.
Although Benitez now claims that he would have pled not guilty if the district
court had explained Pinkerton liability to him in detail, after considering the
strength of the evidence in the government’s case and the benefits Benitez received
through his guilty plea, we are not persuaded that Benitez would have chosen to go
to trial instead of pleading guilty. As we similarly found in United States v.
DePace, 120 F.3d 233, 238 (11th Cir. 1997), even though it “would have been
preferable” to explain the Pinkerton theory in greater detail, “we cannot find that
[the district court’s] omission undermined [Benitez’s] understanding to a degree
that would invalidate the . . . acceptance of the guilty plea.”
We find that Benitez knowingly and voluntarily entered a plea of guilty to
Count Three, and the district court was presented with a sufficient factual basis for
finding Benitez guilty of that count. Further, we conclude that Benitez failed to
carry his burden to establish that his decision to plead guilty was affected by the
15
district court’s [decision not] to explain Pinkerton liability. Therefore, we find no
error that was plain and that affected Benitez’s substantial rights.
III. CONCLUSION
Benitez appealed his conviction for possession of a firearm during a drug
trafficking offense, under 18 U.S.C. § 924(c). Benitez argued that the district court
violated Federal Rule of Criminal Procedure 11 by failing to ensure that Benitez
adequately understood the nature of Count Three of the indictment, which charged
that Benitez knowingly possessed a handgun in furtherance of a drug offense.
Benitez argued that his guilty plea was not knowing and voluntary because the
district court did not explain to Benitez how he could be found guilty of Count
Three under a Pinkerton theory of liability, through which Benitez could be
charged with possession of a firearm if the presence of the firearm during the drug
trafficking offense was reasonably foreseeable. We find that Benitez entered a
knowing and voluntary guilty plea for which there is a sufficient factual basis
under Pinkerton, the district court was not required to walk Benitez through the
Pinkerton theory during the plea hearing, and Benitez did not establish a
reasonable probability that he would not have pled guilty but for the district court’s
choice not to explain that theory. Therefore, Benitez’s conviction is AFFIRMED.
16