United States v. Arenas-Gutierrez

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10587
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTONIO ARENAS-GUTIERREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:94-CR-97-Y(13))
February 7, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Background
Antonio Arenas-Gutierrez pleaded guilty to maintaining a place
for the purpose of storing and distributing cocaine and marijuana.
Arenas was sentenced to a term of imprisonment of 78 months and is
to be delivered to immigration officials for deportation following
the completion of his sentence.
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
An investigation conducted by the Drug Enforcement Agency
(DEA) revealed the existence of a multi-kilogram cocaine-
distribution operation in Fort Worth, Texas. According to the
presentence report (PSR), Pablo Sigala and Lorenzo Sigala were the
leaders of the conspiracy. The cocaine was transported from El
Paso to Fort Worth and delivered to the Sigala brothers. The
Sigalases distributed the cocaine to other members of the
conspiracy, who were responsible for storing and selling the
cocaine. Arenas, assisted by Carlos Guitierrez-Moreno and Enrique
Moreno-Guitierrez, stored and distributed cocaine from Arenas'
residence.
The PSR also stated that Ruben Munoz, the Sigalases' cocaine
supplier, sent Sabino Munoz and Officer Rangel, an undercover
agent, to Fort Worth to collect drug proceeds from the Sigalases.
Munoz and Rangel met with the Sigalases and they prepared a list of
co-conspirators who owed drug proceeds and/or cocaine to the
Sigalases. The group proceeded to several residences to collect
money or retrieve cocaine. The group went to the residence of
Arenas located at 2032 Brooks Street, and Pablo Sigala delivered
two kilograms of cocaine to an individual known as "Poncho."
Arenas was present during the delivery. According to the factual
resume of Pablo Sigala, he had delivered cocaine to that residence
on several occasions. The resume also indicated that Arenas was
responsible for distributing the cocaine received by "Poncho" from
Sigala.
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Agents executed a search warrant at the Brooks Street
residence and discovered 3,900 grams of marijuana and a semi-
automatic pistol in a dresser drawer in the bedroom occupied by
Arenas. Enrique Moreno-Guitierrez and Carlos Guitierrez-Moreno
were found sleeping in another bedroom where a semi-automatic
pistol was found. In a large hole in the floor of the common
hallway, agents located a toolbox containing 82 grams of cocaine.
Agents discovered several scales which are used to weigh drugs in
a tool shed located in the backyard of the residence. The three
men were arrested. The probation officer who prepared Arenas' PSR
stated that, according to Pablo Sigala's factual resume, Enrique
Moreno-Guitierrez admitted that he was in the residence to protect
the cocaine from robbers.
In the factual resume supporting his plea agreement, Arenas
admitted that he and others had used the residence to store and
distribute cocaine and marijuana. He also acknowledged that he was
present when Pablo Sigala came to the residence and delivered
approximately two kilograms of cocaine to another person.
The PSR recommended that Arenas be held accountable for the
two kilograms of cocaine delivered to his residence as well as the
82 grams of cocaine and 3,900 grams of marijuana seized from his
residence. The probation officer converted the cocaine to its
marijuana equivalency because different types of drugs were
involved in the offense. Based on that calculation, the total
amount of drugs involved in the offense was 420.3 kilograms of
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marijuana, which resulted in Arenas receiving a base offense level
of 28.
The PSR also recommended that the offense level be increased
by two levels because of Arenas' possession of a dangerous weapon.
It further recommended that Arenas receive a credit for the
acceptance of responsibility, which resulted in his receiving a
total offense level of 27. Based on his criminal history category
of I, the recommended guideline sentencing range was 70 to 87
months.
In his objections to the PSR, Arenas argued that he was not a
participant in the conspiracy and that he had no connection with
the other co-conspirators, except that he resided with Carlo and
Enrique. Arenas also objected to the recommendation that the
offense level be increased for possession of a firearm.
At the sentencing hearing, Arenas acknowledged that he had
stipulated to the facts contained in his factual resume, which
included an admission that he was present when Pablo Sigala
delivered two kilograms of cocaine to his residence. However, he
argued at the sentencing hearing that he should not be held
responsible for the two kilograms of cocaine.
The district court overruled Arenas' objections based on the
reasons given by the probation officer in the addendum to the PSR.
Arenas did not provide any additional evidence to rebut the PSR
findings although the district court afforded him the opportunity
to do so.
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Opinion
The Government argues that Arenas' appeal should be dismissed
because he waived his right to appeal his sentence in his plea
agreement with the Government.
In response to the Government's argument, Arenas argues in his
reply brief that he is entitled to appeal because the district
court failed to sentence him within the correct guideline range.
Arenas also argues that the appeal waiver was not specifically
explained to him in court and that he did not understand the
consequences of his waiver. Arenas further argues that the
district court also required him to sign a "Notice of Right to
Appeal," a document that expressly stated that he had a right to
appeal.
"[A] defendant may, as part of a valid plea agreement, waive
his statutory right to appeal his sentence." United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992). To be valid, a
defendant's waiver of his right to appeal must be informed and
voluntary. United States v. Portillo, 18 F.3d 290, 292-93 (5th
Cir.), cert. denied, 115 S. Ct. 244 (1994).
When the record of the Rule 11 hearing clearly
indicates that a defendant has read and understands
his plea agreement, and that he raised no question
regarding a waiver-of-appeal provision, the
defendant will be held to the bargain to which he
agreed, regardless of whether the court
specifically admonished him concerning the waiver
of appeal.
Id. at 293.
Arenas' plea agreement states that his sentence would be
determined by the district court under the sentencing guidelines
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and that no one could predict his sentence until the completion of
the presentence investigation. The agreement further provides that
Arenas would not be permitted to withdraw his guilty plea in the
event that the applicable guideline range as recommended by the
Unites States Probation Officer or as finally determined by the
District Judge was higher than expected. The plea agreement also
contains the following provision:
VI. WAIVER OF RIGHT TO APPEAL SENTENCE: The
Defendant understands that under the
provisions of Title 18, United States Code,
§ 3742 that he has the right to appeal from
the sentence imposed by the District Judge
presiding in this case under certain
circumstances. Being so advised, the
Defendant hereby waives and gives up his right
to appeal from any sentence imposed by the
District Judge presiding in the case, except
that the Defendant expressly reserves his
right to appeal from the sentence imposed if
the District Judge presiding in this case
departs upward from the applicable guideline
range.
During the Rule 111 hearing on March 6, 1995, the district
court again advised Arenas that his sentence could not be
determined until after the preparation of the PSR and that the
court was not bound by any stipulation between Arenas' counsel and
the Government. The district court also advised Arenas that "[y]ou
have the right to appeal the sentence that the Court imposes unless
you waive that right." Arenas indicated that he understood the
court's admonitions. Arenas confirmed that the entire plea
agreement had been read to him prior to his signing the document.
Arenas agreed that all of the terms of the agreement were contained
1
Fed. R. Crim. P. 11.
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in the document and that he was voluntarily and freely entering
into the plea agreement. The district court did not specifically
address the waiver of appeal provision.
The trial judge found that Arenas voluntarily entered into the
plea agreement which contains the waiver provision. At the
sentencing hearing on June 19, 1995, the district court advised
Arenas at the conclusion of the proceeding that he was entitled to
appeal his sentence. The district court also required Arenas to
sign a document that contained a written notice of his right to
appeal.
The effectiveness of the waiver of the right to appeal in the
plea agreement in this case is controlled by our decisions in
Portillo and Melancon cited earlier. In Portillo, the defendant
made the same contention as Arenas here that the waiver of the
right to appeal was not specifically addressed in the Rule 11
hearing. However, in Portillo we held that where "the record of
the Rule 11 hearing clearly indicates that a defendant has read and
understands his plea agreement, and that he raised no question
regarding a waiver-of-appeal provision, the defendant will be held
to the bargain to which he agreed, regardless of whether the court
specifically admonished him concerning the waiver of appeal." 18
F.3d at 292-93. Similarly, in Melancon the defendant contended
that the "knowingness" of his waiver of the right to appeal was
negated by the district court's misstatement at sentencing that he
had the right to appeal. Our Court squarely rejected this
contention:
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The court's statements ... were made four months
after Appellant entered into the plea agreement
with the Government; they could not have influenced
Appellant's decision to plead guilty. Furthermore,
any alleged uncertainty on behalf of the district
court as to the legality of the agreement does not
affect our determination that Appellant's waiver
was voluntary, knowing, and permissible.
972 F.2d at 568.
Accordingly, we hold that Arenas waived his right to appeal in
this case and that this appeal should, accordingly, be DISMISSED.
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