United States v. Alvarez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5210
GERMAN ALBERTO ALVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-534-A)
Submitted: January 14, 1997
Decided: March 3, 1997
Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph M. Cardona, KOORITZKY & ASSOCIATES, Arlington, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, John J.
Farley, Special Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
German Alberto Alvarez pled guilty to conspiracy, in violation of
18 U.S.C. § 371 (1994); immigration fraud, in violation of 18 U.S.C.
§ 1546(a) (1994); mail fraud, in violation of 18 U.S.C. § 1341 (1994);
and income tax fraud, in violation of 26 U.S.C.§ 7206(1) (1994).
Alvarez and his mother, Nina Rancone, established a business
known as Metropolitan Immigration Services Incorporated (MISI).
MISI prepared and submitted fraudulent immigration applications to
the United States Immigration and Naturalization Service (INS) on
behalf of its clients, who paid a fee for MISI's services.
At sentencing, the Government claimed that there had been over
100 fraudulent documents involved in Alvarez's offense. Thus,
the Government argued that Alvarez's offense level should be
increased by six points pursuant to United States Sentencing Commis-
sion, Guidelines Manual § 2L2.1(b)(2)(C) (Nov. 1994). The district
court heard evidence to determine the number of fraudulent political
asylum applications involved in Alvarez's offense. The court con-
cluded that the Government proved by a preponderance of the evi-
dence that over 100 sets of documents were involved in the offense.
Thus, the court increased Alvarez's offense level by six points. USSG
§ 2L2.1(b)(2)(c).
Alvarez then moved to withdraw his guilty plea, claiming that he
pled guilty based on his understanding that the facts would not sup-
port a six-point enhancement. The court denied Alvarez's motion to
withdraw his guilty plea and sentenced Alvarez to thirty-three months
incarceration and three years of supervised release.
On appeal, Alvarez claims that the district court erred by: (1) deny-
ing his motion to withdraw his guilty plea; and (2) enhancing his
offense level by six points.
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Initially, we note that Alvarez waived his appellate rights in his
plea agreement. A defendant may waive his appellate rights as part
of a valid plea agreement. United States v. Wiggins, 905 F.2d 51, 53
(4th Cir. 1990). To be a valid waiver, the waiver must be knowingly
and intelligently made. United States v. Wessells, 936 F.2d 165, 167
(4th Cir. 1991). A de novo review of the materials before the court
suggests that these prerequisites were met. The plea agreement
explained each of the rights Alvarez was waiving by pleading guilty.
Acknowledging all this, Alvarez knowingly waived the right to appeal
any sentence within the maximum provided in the statutes of convic-
tion (or the manner in which that sentence was determined) on any
ground, in exchange for the concessions made by the United States
in his plea agreement. Although a transcript of the plea hearing is
unavailable to show that the district court specifically asked Alvarez
whether he understood the significance of the waiver provision, there
is no evidence in the record or in Alvarez's argument that Alvarez
lacked an understanding of the import of the waiver provision or that
the plea hearing was in any way deficient. See United States v. Davis,
954 F.2d 182, 186 (4th Cir. 1992). Thus, Alvarez waived his right to
appeal. In any event, Alvarez's claims are meritless.
First, Alvarez claims that the district court erred by failing to grant
his motion to withdraw his guilty plea. We review a district court's
refusal to allow a defendant to withdraw a guilty plea for an abuse of
discretion. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.
1995). A defendant does not have an absolute right to withdraw a
guilty plea. United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992).
Rather, the defendant must present a "fair and just reason" for the
withdrawal. Fed. R. Crim. P. 32(e). A "fair and just reason" is one
that "essentially challenges . . . the fairness of the Rule 11 proceed-
ing." United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992)
(en banc). An appropriately conducted Rule 11 proceeding, however,
raises a strong presumption that the guilty plea is final and binding.
Id.Courts consider several factors in determining whether to permit
withdrawal of a guilty plea: (1) whether there was a delay between
the entry of the plea and the filing of the motion; (2) whether the
defendant was assisted by competent counsel; (3) whether the defen-
dant credibly asserted his legal innocence; (4) whether the defendant
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offered credible evidence that his plea was not knowing or voluntary;
(5) whether the withdrawal would prejudice the government; and (6)
whether the withdrawal would inconvenience the court and waste
judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). The defendant carries the burden of establishing a fair and
just reason for withdrawal, even if the government has not shown
prejudice. Lambey, 974 F.2d at 1393-94.
Using the factors as a guide, Alvarez's strongest argument is that
throughout the plea agreement process he was led to believe that a
four-point sentence enhancement would be applied to him. Alvarez
alleges that upon learning that the court would use a six-point
enhancement in calculating his sentence, he moved to withdraw his
guilty plea. A review of the evidence, however, does not support
Alvarez's claim.
Alvarez was advised of the maximum penalties he faced in his plea
agreement and was sentenced within the statutorily permissible range.
Further, Alvarez's plea agreement advised him that his sentence
would be imposed in accordance with the sentencing guidelines, the
court had jurisdiction and authority to impose any sentence within the
statutory maximum set for the offenses to which he pled guilty, and
the court had not yet determined a sentence. Alvarez also was
informed that any estimate of the probable sentencing range under the
sentencing guidelines that he may have received from his counsel, the
United States, or the probation office, was a prediction, not a promise,
and was not binding on the United States, the probation office, or the
court. Further, Alvarez was notified that the United States did not
make any promises or representations concerning what sentence he
would receive, and he could not withdraw a guilty plea based upon
the actual sentence.
After Alvarez moved to withdraw his guilty plea, he testified that
the court asked him at his plea hearing whether there were any prom-
ises or assurances other than those reflected in the plea agreement and
he stated that there were none. He further testified that when he
entered the plea agreement, it was uncertain whether he would receive
a six-point enhancement. The sentencing judge, who also conducted
Alvarez's plea hearing, further recollected that during the plea hear-
ing, Alvarez was asked whether he understood that if the sentence he
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received was more severe than the sentence he expected he would still
be bound by his plea and he would have no right to withdraw it. The
court noted that he must have replied "yes" because the plea would
not have been accepted if Alvarez said "no." See Blackledge v.
Allison, 431 U.S. 63, 74 n.4 (1977). Alvarez has not articulated a
compelling reason why his statements at his plea hearing should be
disregarded. Id. at 75. Further, the district court was not required to
advise Alvarez about his applicable sentencing guideline range prior
to accepting his guilty plea. Puckett, 61 F.3d at 1099. A review of the
remaining Moore factors also weighs against allowing Alvarez to
withdraw his plea. Moore, 931 F.2d at 248. Thus, we find that Alva-
rez knowingly and voluntarily pled guilty.
Alvarez next claims that the district court erred in enhancing his
offense level by six points. Alvarez's base offense level was increased
by six points pursuant to USSG § 2L2.1(b)(2)(C), because the court
determined that more than 100 fraudulent documents were involved
in his offense. Alvarez alleges that the district court's factual findings
were clearly erroneous because the court relied on hearsay testimony
rather than requiring the Government to present affidavits from 100
or more illegal aliens indicating that their political asylum applica-
tions were fraudulent.
This court has held that a sentencing court enjoys broad discretion
in determining what information it will credit for sentencing purposes.
See United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993). A
sentencing court may properly consider even uncorroborated hearsay
that the defendant has had an opportunity to rebut or explain. Id. In
addition, factual disputes concerning adjustments under the guidelines
should be resolved by a preponderance of the evidence. United States
v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). The standard
of review regarding factual findings by the district court during sen-
tencing is clear error. See United States v. Turner, 59 F.3d 481, 484
(4th Cir. 1995). A preponderance of the evidence supported the dis-
trict court's application of the six-point enhancement to Alvarez's
offense level, and thus, the district court did not err.
Elizabeth Goyer, a special agent of the INS, and Grace McPhear-
son, Alvarez's probation officer, both estimated that more than 100
fraudulent documents were involved in Alvarez's offense. Goyer's
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testimony was based upon her review of approximately 1500 political
asylum applications in various states of preparation that were found
in the office of MISI and interviews of approximately fifty aliens who
filed fraudulent applications through MISI.
The district court also found credible the testimony of the probation
officer, Grace McPhearson. McPhearson's testimony was based upon
her interview of Alvarez's mother, Rancone, during the preparation
of Alvarez's presentence report. Although Rancone's testimony at the
sentencing hearing contradicted McPhearson's testimony, the court
did not find Rancone's testimony credible. This court does not review
a trier of fact's assessment of credibility of witnesses. United States
v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Therefore, we hold that
the district court's application of the six-point enhancement was not
clearly erroneous.
Accordingly, we affirm Alvarez's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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