U.S. v. Riascos-Suarez

Decision Date13 March 1996
Docket NumberRIASCOS-SUAREZ,No. 95-5035,95-5035
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Guidoa/k/a Kennedy Diuza-Riascos, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Terry M. Cushing (argued and briefed), Mark L. Miller, Asst. U.S. Attys., Louisville, KY, for plaintiff-appellee.

Thomas H. Atkins (argued and briefed), Atkins & Atkins, Louisville, KY, for defendant-appellant.

Before: MERRITT, Chief Judge; DAUGHTREY and OAKES, * Circuit Judges.

OAKES, Circuit Judge.

Appellant Guido Riascos-Suarez pleaded guilty to one count each of possession with intent to distribute cocaine, conspiracy to possess with intent to distribute cocaine, unlawful entry into the United States by a deported alien, and possession of a firearm by an illegal alien. Riascos-Suarez also entered an Alford plea on one count of use of a firearm during a drug trafficking crime. He was sentenced by Judge John G. Heyburn, Western District of Kentucky, to a total of 168 months' imprisonment.

Riascos-Suarez appeals on several grounds. First, he claims the district court erred in denying his motion to withdraw his guilty plea. Second, he asserts that the court erred in accepting his Alford plea. Third, he claims that the court erred in denying his motion to suppress evidence. Fourth, he claims that the court erred in denying him the opportunity to cross-examine a co-defendant once that codefendant exercised her Fifth Amendment right against self-incrimination. Fifth, he claims the court erred when it failed to follow Federal Rules of Criminal Procedure Rule 32(c)(3)(C) by denying the defendant his right to address the court during sentencing.

We agree with the appellant's fifth contention and we hold that the district court erred in denying Riascos-Suarez his right to address the court during sentencing. Therefore, we vacate the sentence and remand for a new sentencing hearing. We affirm the district court on all of Riascos-Suarez's remaining claims.

BACKGROUND

In May 1993, a Louisville police detective observed Riascos-Suarez driving a Nissan The police detective, wary of the movement he had observed in the car, approached with his gun drawn. He asked Riascos-Suarez to identify himself. Riascos-Suarez responded that his name was Kennedy Riascos Diuza and produced identification with this alias. 1 He stated that he did not own the Nissan. He said he was traveling to Ohio to purchase jewelry for someone in Houston, and had stopped in Louisville to see his girlfriend.

automobile at a speed of approximately 100 miles per hour. The police detective activated the squad car's lights and sirens, indicating that Riascos-Suarez should pull over. After about a mile and a half, during which period the detective observed "lots of movement" in the Nissan, Riascos-Suarez pulled over.

As the detective stood outside of the car and questioned Riascos-Suarez, he noticed bundles of money scattered throughout the Nissan's interior. The detective then asked Riascos-Suarez to exit the vehicle. As Riascos-Suarez exited, the detective saw a handgun protruding from the driver's side of the console.

The detective placed Riascos-Suarez under arrest for speeding and carrying a concealed deadly weapon. After reading the Miranda rights to Riascos-Suarez, the detective asked him a series of questions, including whether he had "any problem" with the detective searching the Nissan. Riascos-Suarez responded by saying, "Go ahead, there's no dope in the car."

A search of the Nissan yielded a loaded .380 Baretta semi-automatic handgun, additional ammunition, approximately $20,000 in cash, a plastic grocery sack containing a clear cellophane bag wrapped in silver duct tape, a piece of Holiday Inn stationery inscribed with "Azziz Kahn" and "room 110," and several of Riascos-Suarez's business documents written in English. The clear cellophane bag smelled of garlic and was dusted with a fine white powder, later identified as cocaine.

Police detectives traveled to the Holiday Inn nearest the scene of the arrest and located Azziz Kahn. Kahn stated that he had hoped to "hook up" with Riascos-Suarez for a drink later. He also informed the police that Riascos-Suarez was staying at the hotel with a Jamaican woman. The hotel manager gave the police similar information. The police located the woman, named Cherry Coleman, in the hotel bar. Coleman admitted to knowing Riascos-Suarez. One detective asked Coleman whether she would permit the officers to ask her a few questions in her hotel room. Coleman agreed, and two detectives went into the room with her while one remained outside. The detectives read Coleman her Miranda rights and told her that she was free to leave at any time.

The detectives asked for and obtained written consent to search Coleman's hotel room. During the search of the room, the police found a bag containing approximately $11,000 in cash; a zippered gym bag containing a receipt for an electronic scale, a receipt for dry cleaning for "Kennedy Diuza," and plastic baggies; men's clothing and a laundry bag marked "room 341"; and approximately 700 grams of cocaine.

After return of a five-count Superseding Indictment in August 1993, Coleman filed a motion to suppress the evidence seized from the hotel room, and Riascos-Suarez filed a motion to suppress the evidence seized from the Nissan. During the suppression hearing, Coleman began to testify in support of her motion, but invoked her Fifth Amendment right and withdrew her suppression motion after the Government started cross-examination. Riascos-Suarez objected and asked to be permitted to cross-examine Coleman. The court, discrediting Coleman's testimony, refused to allow Riascos-Suarez to cross-examine Coleman and denied Riascos-Suarez's suppression motion.

In June 1994, Riascos-Suarez pleaded guilty to four of the five counts and entered an Alford plea on the remaining count of using a firearm during a drug trafficking Approximately three months after pleading guilty, Riascos-Suarez filed a pro se motion to withdraw the guilty plea. Simultaneously, defense counsel asked the court permission to end his representation of Riascos-Suarez. The court granted counsel's request and new counsel was appointed. The guilty plea withdrawal motion was renewed and denied by the court. Riascos-Suarez was then sentenced to 108 months concurrently on four counts and 60 months consecutively on the Alford plea count, for a total sentence of 168 months.

                crime. 2  During the plea colloquy, an interpreter was on hand to translate any part of the proceedings that Riascos-Suarez indicated he did not understand
                
DISCUSSION
I. Withdrawal of Guilty Plea

Riascos-Suarez claims the district court erred in denying his motion to withdraw his guilty plea to four of the five counts in the indictment. We review the district court's decision for abuse of discretion. United States v. Stephens, 906 F.2d 251, 252 (6th Cir.1990).

Federal Rules of Criminal Procedure Rule 32(e) (formerly Rule 32(d)) states "[i]f a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the rule, then, the defendant bears the burden of showing that the plea should be withdrawn. Stephens, 906 F.2d at 252.

The district court should evaluate whether a defendant has proffered a "fair and just reason" for withdrawing the plea by considering:

(1) whether the movant asserted a defense or whether he has consistently maintained his innocence; (2) the length of time between the entry of the plea and the motion to withdraw; (3) why the grounds for withdrawal were not presented to the court at an earlier time; (4) the circumstances underlying the entry of the plea of guilty, the nature and the background of a defendant and whether he has admitted his guilt; and (5) potential prejudice to the government if the motion to withdraw is granted.

United States v. Goldberg, 862 F.2d 101, 103-04 (6th Cir.1988); see also United States v. Spencer, 836 F.2d 236, 238-40 (6th Cir.1987).

We find that the district court did not err in applying these criteria. With regard to the first factor for Rule 32(e) decisions, Riascos-Suarez did not "consistently maintain his innocence" to these four charges or offer any defenses. In weighing the second, third and fifth factors, the court did not penalize Riascos-Suarez for the delay in filing his motion caused by change of counsel or for prejudice to the government, because it found that Riascos-Suarez could not meet his burden under the fourth factor.

Riascos-Suarez argued, regarding the fourth factor, that due to his inability to understand English and unfamiliarity with the American judicial system, he could not appreciate the nature of the plea process. The district court did not agree, finding that nothing in the record indicated that a lack of comprehension affected the plea.

At the change of plea hearing, the court took pains to ensure that Riascos-Suarez understood the proceedings. An interpreter was present. The court specifically told Riascos-Suarez that the interpreter could translate every word of the proceeding should Riascos-Suarez so desire. The following exchange took place:

THE COURT: Now, so far I have noticed that you are not making any translations, is that because he understands?

BY INTERPRETER: I believe so, Your Honor. He indicated to me just to interpret whenever he doesn't understand....

THE COURT: I want to make it clear that it is at the defendant's request that you are not translating every word.... [W]e will proceed in English with translation from the translator where necessary and where requested by the defendant, all right?

BY DEFENDANT: (Nodding affirmatively).

Following this exchange, the district court apprised Riascos-Suarez of his...

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