United States v. Amador

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4934
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE ARMANDO AMADOR, a/k/a Rigoberto Amador,
a/k/a Carlos Aguillar, a/k/a Rodolfo Amador,
a/k/a Rigoberto Berrios Amador,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-05-176)
Submitted: December 20, 2006 Decided: January 19, 2007
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anne K. Albright, ALBRIGHT & RHODES, LLC, Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, James M.
Trusty, Assistant United States Attorney, Theodore Cooperstein,
Special Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Armando Amador appeals his conviction of unlawful
reentry after deportation for an aggravated felony in violation of
8 U.S.C. § 1326(a), (b)(2) (2000) pursuant to his guilty plea.
After Amador pled guilty, but before sentencing, the Government
charged him by separate indictment with participating in a
racketeering conspiracy, in violation of 18 U.S.C. § 1962(d)
(2000). At his sentencing hearing regarding the illegal reentry
offense, at which he was represented by new counsel, Amador moved
to withdraw his guilty plea. Amador alleged his former counsel
incorrectly represented to the court that he was sufficiently
fluent in English and that he did not know when he pled guilty that
he would be indicted for a racketeering conspiracy. The district
court denied the motion because Amador appeared to understand
English and because he did not establish his plea was unfair or
unjust.
Amador challenges the district court’s denial of his
motion to withdraw his guilty plea on the grounds that it was not
knowingly or intelligently made because he was unaware that the
Government would later indict him for conspiracy. We review a
district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). A defendant may withdraw a guilty plea prior to
sentencing if he “can show a fair and just reason for requesting
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the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Amador contends
that he presented a fair and just reason to have an evidentiary
hearing on the withdrawal of his guilty plea. We find that because
Amador was not entitled to a hearing as a matter of right and did
not establish that a fair and just reason existed to necessitate a
hearing, the district court did not abuse its discretion in
declining to hold a hearing on his motion to withdraw his guilty
plea.
Turning to the substance of the denial of Amador’s motion
to withdraw his guilty plea, this court applies six factors in
assessing whether to permit the withdrawal of a guilty plea:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or otherwise involuntary;
(2) whether the defendant has credibly asserted his legal
innocence; (3) whether there has been a delay between
entry of the plea and filing of the motion; (4) whether
the defendant has had close assistance of counsel; (5)
whether withdrawal will cause prejudice to the
government; and (6) whether withdrawal will inconvenience
the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). With
respect to the first Moore factor, Amador contends that because the
Government withheld that it would soon indict him on racketeering
charges, his plea was not intelligently made. We reject this
contention because the impact of Amador’s conviction on his
racketeering case is not an immediate or automatic result of his
guilty plea regarding the offense of illegal reentry after
deportation. See United States v. McHan, 920 F.2d 244 (4th Cir.
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1990). We further find that the second and fourth Moore factors
also weigh against Amador. Amador has never claimed legal
innocence, and he has had close assistance of counsel. We conclude
the remaining Moore factors are neutral. Therefore, the district
court did not abuse its discretion in denying Amador’s motion to
withdraw his guilty plea. See United States v. Sparks, 67 F.3d
1145, 1154 (4th Cir. 1995) (stating that the first, second and
fourth Moore factors “speak most straightforwardly to the question
whether the movant has a fair and just reason to upset settled
systemic expectations” by withdrawing a guilty plea).
Amador next challenges the denial of his motion to
withdraw his plea on the grounds that the district court did not
obtain his waiver of the right to an interpreter directly from him
and did not employ an interpreter to explain the consequences of
this waiver pursuant to the Court Interpreters Act of 1978.
Because Amador did not object to his sentencing hearing on this
ground, this court reviews for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). Four
conditions must be met before this court will notice plain error:
(1) there must be error, (2) it must be plain under current law,
(3) it must affect substantial rights, and (4) the error must
seriously affect the fairness, integrity, or public reputation of
the judicial proceedings. Id. at 733-37.
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Pursuant to the Court Interpreters Act, 28 U.S.C. § 1827(2000), the district court must utilize the services of an
interpreter if the court “determines [on its own motion] or on the
motion of a party that such party speaks only or primarily a
language other than the English language” and will be “inhibited”
in comprehending the proceedings, or communicating with counsel or
the court. 28 U.S.C. § 1827(d)(1) (2000).
A Spanish interpreter was present at Amador’s
arraignment. At the outset of Amador’s Fed. R. Crim. P. 11
colloquy, the district court asked Amador’s counsel if his client
needed an interpreter, and counsel replied that his client “speaks
perfectly good English.” Amador answered the initial colloquy
questions--many of which did not require merely yes or no answers--
correctly. The district court asked Amador about his competency in
English. Amador stated he could understand spoken English and
explained that his lawyer read his plea agreement aloud to him.
The court then conducted the entire Rule 11 colloquy in English,
and Amador responded appropriately in English to all of the
district court’s questions.
On appeal, Amador contends that the district court
plainly erred when it directed the question as to whether he needed
an interpreter to defense counsel, not to Amador himself. Amador
did not request the presence of a translator at the guilty plea
hearing, and the district court made an assessment on its own
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motion that Amador understood the proceedings. Further, Amador did
not give the district court reason to believe that his
understanding of the proceedings was hindered by his language
abilities. Accordingly, the district court did not plainly err in
determining that Amador did not require an interpreter to
understand the proceedings.
Accordingly, we affirm Amador’s conviction. We also deny
the Government’s motion to dismiss the appeal because Amador
challenged his conviction, not his sentence, and therefore the
issues in this appeal were beyond the scope of the appellate waiver
included in Amador’s plea agreement. We dispense 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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