United States v. Valdobino-Pineda

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-40727
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMINIO VALDOBINO-PINEDA,
also known as Francisco Hurtado-Villa,
Defendant-Appellant.
* * * * * * * * * *
Consolidated with
No. 04-40729
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO PINEDA-PINEDA,
also known as Ariel Penaloza-Pineda,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:03-CR-106-5)
(7:03-CR-106-4)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Herminio Valdobino-Pineda and
Eduardo Pineda-Pineda challenge their convictions and 120-month
sentences following their guilty pleas to conspiracy to possess
with intent to distribute more than 1,000 kilograms of marijuana.
Valdobino and Pineda were arrested by state authorities on 18 March
2002, after they loaded marijuana into a van. They were indicted
on federal charges on 12 February 2003.
Before trial, Valdobino and Pineda moved to dismiss the
indictments on Fifth and Sixth Amendment speedy trial grounds and
pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3163. The
district court heard evidence on these motions, but deferred
ruling. Because Valdobino and Pineda pleaded guilty during trial,
the district court never ruled on the pre-trial motions to dismiss.
On appeal, defendants contend: their rights under the Speedy Trial
Act attached in March 2002 when they were taken into state custody;
these rights were violated by the delay in prosecution until
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
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February 2003; and the district court erred by deferring its ruling
on the pretrial motions to dismiss on speedy trial grounds.
As for their guilty pleas, defendants contend: their
unconditional guilty pleas were invalid because they intended to
preserve the right to appeal the denial of their motions to dismiss
the indictment as a violation of their statutory rights to a speedy
trial; the guilty pleas were not knowing and voluntary because
defendants were not aware of the consequences of the pleas; and the
district court erred in denying, without an evidentiary hearing,
defendants’ motions to withdraw their guilty pleas and enter
conditional ones. Defendants also contest their 120-month
sentences.
We review a variance from FED. R. CRIM. P. 11 (entering a plea)
for harmless error. FED. R. CRIM. P. 11(h). Valdobino and Pineda
entered knowing and voluntary unconditional guilty pleas, waiving
all nonjurisdictional defects, including Speedy Trial Act
violations, that may have occurred during pre-plea proceedings.
See FED. R. CRIM. P. 11(a)(2); United States v. Abreo, 30 F.3d 29,
31-32 (5th Cir.), cert. denied, 513 U.S. 1064 (1994); United States
v. Bell, 966 F.2d 914, 915 (5th Cir. 1992). Pineda’s and
Valdobino’s sworn responses to the district court’s inquiries at
the plea hearing establish that there was no misconception about
the unconditional nature of the pleas. Abreo, 30 F.3d at 31(“testimony in open court carries a strong presumption of verity”).
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Even if the guilty pleas had preserved the right to appeal the
speedy-trial statutory issue, the district court did not err in
deferring ruling on that issue. FED. R. CRIM. P. 12(d) states a
court “must decide every pretrial motion before trial unless it
finds good cause to defer a ruling”. (emphasis added). A state
arrest, even an arrest that is based upon the same operative facts
as a subsequent federal accusation, does not trigger the
protections afforded by the Federal Speedy Trial Act. United
States v. Gomez, 776 F.2d 542, 549-50 (5th Cir. 1985). Defendants’
pretrial motions to dismiss on speedy trial grounds raised not only
the Speedy Trial Act, but also Fifth and Sixth Amendment issues.
The district court had good cause for deferring ruling on the
motions to dismiss, as a Fifth Amendment determination of denial of
speedy trial rights requires evidence of prejudice unavailable
until trial. See United States v. Crouch, 84 F.3d 1497, 1516 (5th
Cir. 1996), cert. denied, 519 U.S. 1076 (1997).
Defendants contend their guilty pleas are invalid because the
district court did not advise them of the elements of the offense:
they were not told that the Government had to prove they conspired
to possess with intent to distribute 1,000 kilograms of marijuana;
and the drug quantity cited by the Government at the plea hearing
did not implicate the mandatory minimum sentencing provision of 21
U.S.C. § 841. Defendants do not contend they did not understand
the nature of the offense.
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At rearraignment, the Government erroneously reported the drug
quantity as 1,375 pounds, instead of kilograms; however, the
indictment read aloud, and the district court’s admonitions during
the plea colloquy, put Valdobino and Pineda on notice they were
subject to the 120-month statutory mandatory minimum sentence.
Defense counsel, as officers of the court, had a duty to alert the
district court to any variance from the procedure required by FED.
R. CRIM. P. 11; defendants cannot benefit on appeal from what was an
obvious misstatement. See United States v. Cuevas-Andrade, 232
F.3d 440, 445 n.3 (5th Cir. 2000), cert. denied, 532 U.S. 1014(2001). Any error was harmless. See FED. R. CRIM. P.11(h); 21
U.S.C. § 841(b)(1)(A)(vii).
The denial of a motion to withdraw a guilty plea and the
decision not to hold an evidentiary hearing are reviewed for abuse
of discretion. E.g., United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003). Valdobino and Pineda have not shown the district
court abused its discretion by denying, without conducting an
evidentiary hearing, their motions to withdraw their pleas or to
convert the pleas to conditional pleas, reserving the right to
appeal the rulings on the speedy trial motions. See id. at 370.
The district court did not err by sentencing Valdobino and
Pineda to the 120-month statutory mandatory minimum sentence. A
“term of imprisonment which may not be less than 10 years or more
than life” shall be imposed for an offense involving 1,000
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kilograms or more of a substance containing marijuana. 21 U.S.C.
§ 841(b)(1)(A)(vii).
Pineda contends, for the first time on appeal, that the
Government did not comply with the terms of the plea agreement
because it did not recommend a sentence at the low end of the
guideline range. We review issues not raised in district court
only for plain error. United States v. Clayton, 172 F.3d 347, 351
(5th Cir. 1999). Plain error is error that is clear or obvious and
affects substantial rights; if defendants make the required
showing, the court has discretion to correct the error, and,
generally, will only do so if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.Because 21 U.S.C. § 841(b)(1)(A)(vii) required a minimum 120-month
sentence, Valdobino’s guideline range became 120 to 135 months, and
Pineda’s guideline range became 120 to 121 months. See U.S.S.G. §
5G1.1(c)(2). The Government did not request a sentence above the
120-month statutory mandatory minimum, which was the low end of the
applicable guideline ranges. Pineda has not shown plain error.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc), cert. denied, 513 U.S. 1196 (1995).
Defendants challenge their sentences as unconstitutional and
in violation of United States v. Booker, 125 S. Ct. 738 (2005), and
the Sixth Amendment right to a trial by jury. As noted, the 120-
month sentences were required by 21 U.S.C. § 841(b)(1)(A)(vii); the
sentences were not imposed under the Sentencing Guidelines as the
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result of facts that had not been admitted or proved to a jury
beyond a reasonable doubt. Booker, 125 S. Ct. at 756. Valdobino
and Pineda have not identified a Sixth Amendment violation. See
id..
AFFIRMED
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