United States v. Lawrence Alexander Alvarado

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 7, 2008
No. 07-11071 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00039-CR-ORL-28JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE ALEXANDER ALVARADO,
a.k.a. Lawrence A. Alvarado,
a.k.a. Lawrence Alvarado,
a.k.a. Pacman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 7, 2008)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Lawrence Alexander Alvarado appeals his conviction for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1),
and his 218-month sentence imposed pursuant to the Armed Career Criminal Act
(“ACCA”).
Alvarado raises three issues on appeal. First, he argues that the district court
erred in accepting his guilty plea where he expressed his belief at the plea hearing
that he would receive a recommendation for a substantial assistance reduction,
under U.S.S.G. § 5K1.1, in exchange for his guilty plea. Alvarado asserts that
because his guilty plea was made as the result of a perceived promise, his plea was
in violation of Federal Rule of Criminal Procedure 11(b)(2), which requires the
court to ensure that the plea is voluntary. Second, Alvarado argues that the district
court abused its discretion in denying his motion to withdraw his guilty plea, as his
uncontradicted belief that the government had promised him a substantial
assistance recommendation established a fair and just reason to withdraw his guilty
plea. Third, Alvarado argues that the district court committed plain error in
sentencing him as an armed career criminal, as the government failed to prove at
sentencing that his prior felony convictions qualified as either serious drug
offenses, or violent felonies, as required by the ACCA.
I. Acceptance of Guilty Plea
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When a defendant fails to object to a Rule 11 violation in the district court,
we review the district court’s compliance with Rule 11 for plain error. United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). To prove plain error, a
defendant must show: (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If all three
conditions are met, we may exercise discretion to recognize the error, if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and quotation omitted).
Because a plea of guilty is a waiver of several constitutional rights, the Due
Process Clause requires the plea to be equally voluntary and knowing. McCarthy
v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969);
See Fed.R.Crim.P. 11(b)(2) (“Before accepting a plea of guilty. . .the court must
address the defendant personally in open court and determine that the plea is
voluntary and did not result from force, threats, or promises (other than promises in
a plea agreement).”). Fed.R.Crim.P. 11 imposes upon a district court the
obligation and responsibility to conduct a searching inquiry into the voluntariness
of a defendant’s guilty plea. United States v. Siegel, 102 F.3d 477, 481 (11th Cir.
1996). Although a court does not necessarily commit error if it omits some items
under Rule 11, a court accepting a guilty plea must comply with Rule 11 and
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specifically address three core concerns, including that a defendant enter his guilty
plea free from coercion. Moriarty, 429 F.3d at 1019.
Alvarado has not met his burden of demonstrating plain error, as he has
failed to show an error so plain that the court obviously violated Rule 11(b)(2). At
the plea hearing the magistrate judge addressed Alvarado personally and in open
court. He questioned Alvarado as to any plea agreement he might have made with
the government, asking, "is that correct. . . . that you proffered without a plea
agreement," to which Alvarado responded, "Yes, sir." When asked if he believed
that the government had promised him anything, Alvarado responded no. After
continued questioning from the judge about any oral promises or representations,
Alvarado stated that there were no oral promises or representations, but that "I was
under the influence that I get a recommendation. . . . for what I did." The judge
then asked, "But you didn't sign a plea agreement, did you?" Alvarado then spoke
to his attorney off the record, after which the judge again asked him whether he
had either a written or oral plea agreement with the government, to which he again
responded no. Alvarado specifically told the magistrate judge at his
change-of-plea hearing that he had neither an oral nor a written plea agreement.
Although Alvarado did initially state that he thought he would get a
recommendation from the government, after consultation with his attorney and
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further questioning from the court, he clarified that no written or oral plea
agreement existed. Thus, he fails to explain how the court should have known
about any alleged promise. Accordingly, the magistrate judge did not commit
plain error in accepting Alvarado’s guilty plea.
II. Withdrawal of Guilty Plea
We review a district court’s decision to deny a motion to withdraw a guilty
plea for an abuse of discretion. United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994). In reviewing a court’s denial of withdrawal of a guilty plea, we “will
reverse only if [the district court’s] ultimate conclusion is arbitrary or
unreasonable.” United States v. Freixas, 332 F.3d 1314, 1318 (11th Cir. 2003)
(internal quotations and citations omitted). After the district court has accepted a
guilty plea and before sentencing, the defendant may withdraw a guilty plea if (1)
the district court rejects the plea agreement, or (2) “the defendant can show a fair
and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(A)-(B).
In determining whether the defendant has met his burden of showing “a fair
and just reason for requesting the withdrawal,” a district court may consider the
totality of the circumstances surrounding the plea, including the following factors:
“(1) whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and (4)
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whether the government would be prejudiced if the defendant were allowed to
withdraw his plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988)
(internal citation omitted). However, the district court is not required to find
prejudice to the government before it can deny a defendant’s motion to withdraw.
Id. at 474. Furthermore, “[t]here is a strong presumption that the statements made
during the [plea] colloquy are true.” Medlock, 12 F.3d at 187. Consequently, a
defendant bears a heavy burden to show that his statements under oath were false.
United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Considering the totality of the circumstances as described above, Alvarado
has failed to establish a fair and just reason for requesting the withdrawal of his
guilty plea, and the district court’s decision to deny his motion was neither
arbitrary nor unreasonable.
III. Armed Career Criminal Act
The ACCA provides for a 15-year mandatory minimum sentence for a
defendant who is convicted under 18 U.S.C. § 922(g)(1) and has three prior
convictions by any court for a violent felony or serious drug offense, or both. See
18 U.S.C. § 924(e). A violent felony means any crime punishable by
imprisonment for a term exceeding one year and has as an element “the use,
attempted use, or threatened use of physical force against the person of another.”
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18 U.S.C. § 924(e)(2)(B). A “serious drug offense” includes a state offense
“involving manufacturing, distributing, or possessing with intent to . . . distribute, a
controlled substance. . . for which a maximum term of imprisonment of ten years
or more is prescribed by law.” Id. at § 924(e)(2)(A)(ii).
We review de novo whether a particular conviction is a “violent felony” or a
“serious drug offense” within the meaning of § 924(e). United States v. James,
430 F.3d 1150, 1153 (11th Cir. 2005) (internal quotations and citations omitted).
However, objections or arguments that are not raised at the district court, are
reviewed for plain error only. Moriarty, 429 F.3d at 1018-19. When a defendant
does not object to facts alleged in the PSI, the defendant admits those facts. United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), cert. denied, 127 S.Ct. 2096(2007); see also, United States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006) (no
error in relying on undisputed facts in PSI to determine nature of predicate crimes
for ACCA purposes).
Because Alvarado failed to object to the underlying facts in the PSI as to
prior felony convictions, he admitted those facts. Thus, there was no error in the
determination that Alvarado’s prior felony convictions were violent felonies and
serious drug offenses under the ACCA.
AFFIRMED.
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