U.S. v. Elias

• Decision Date: 02 July 1991
• Docket Number: No. 90-2230,90-2230
• Citation: 937 F.2d 1514
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edmund Tanios ELIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1514

937 F.2d 1514

UNITED STATES of America, Plaintiff-Appellee, v. Edmund Tanios ELIAS, Defendant-Appellant.

No. 90-2230.

United States Court of Appeals, Tenth Circuit.

July 2, 1991.

Ron Koch, Albuquerque, N.M., on the briefs, for defendant-appellant.

William L. Lutz, U.S. Atty., and Thomas L. English, Asst. U.S. Atty., Albuquerque, N.M., on the brief, for plaintiff-appellee.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

I. Background

Defendant-appellant Edmund Elias appeals a district court denial of his motions to withdraw a guilty plea and the imposition of sentence. On appeal, Elias argues the district court erred because his plea was not made voluntarily, knowingly, and intelligently. He also argues the court erroneously applied the incorrect version of the Sentencing Guidelines or, in applying the correct version, erroneously increased the offense level by taking into account the conduct of his codefendants. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742 and affirm.

Elias was indicted on one count of conspiracy and two counts of firearms violations. He entered a plea of guilty to one count of knowingly making fictitious statements intended to deceive a licensed dealer in connection with the acquisition of firearms in violation of 18 U.S.C. Secs. 2, 922(a)(6), and 924(a)(1)(B).

At the plea hearing, the court placed Elias under oath and asked if he had "received a copy of the indictment, the charges pending against you." Elias responded affirmatively. Elias also responded affirmatively to the court's question whether he had an opportunity to review the charges with his attorney. When the court asked about representation Elias had received from his attorney, Elias indicated he was fully satisfied and had no complaints.

The court informed Elias the maximum penalty for the offense to which he was pleading guilty is not more than five years' imprisonment, a fine of not more than $250,000, and a special penalty assessment of $50. The court also told Elias that although his sentence would not be determined until after a presentence report was completed, Elias would be sentenced under the Sentencing Reform Act of 1984 and the Sentencing Guidelines. The court asked Elias if his attorney had discussed the Sentencing Guidelines with him. Elias indicated he had understood the judge could impose a sentence more or less severe than that called for in the Guidelines.

The court advised Elias he had rights to plead not guilty to the charged offenses, to a trial by jury, to assistance of counsel, to see and hear all the evidence against him and cross-examine witnesses, to decline testifying unless he chose to do so in his own defense, and to use subpoenas or compulsory process to compel witnesses to testify for him. The court also stated that by entering a plea of guilty Elias would not have a trial and would forfeit all the rights explained to him.

The court informed Elias the charge against him was providing a fictitious statement in the acquisition of a firearm. The court questioned the prosecutor about the factual basis of the plea. The prosecutor stated the government would show:

[O]n April 23, 1988 this defendant presented a false driver's license in the name of one Mr. Clements to a licensed firearm dealer, Mr. Howard. In return for those representations, oral representations, Mr. Howard produced, amongst others, two .380 caliber pistols.

The defendant then filled out an ATF [Alcohol, Tobacco & Firearms] form entitled 4473 with that false information. He then swore to that form and signed it. Because of those written and oral representations, the defendant was permitted to purchase the two .380 caliber pistols....

The prosecutor also told the court the government could prove Elias had written the name "Clements" on the form based on a handwriting expert's comparison of handwriting exemplars.

The court asked Elias how he pleaded to Count V of the indictment. Elias responded, "Guilty." When the court asked him to explain in his own words what he was pleading guilty to, Elias told the court he had filled out false information on the form even though he did not understand the law or intend to violate it. When the court asked Elias whether he used the other name, he answered, "Yeah. It's my friend's name." The court found Elias was fully competent and capable of entering an informed plea, his guilty plea was knowing and voluntary, and the plea was supported by an independent factual basis relating to each element of the offense.

After the plea hearing, the presentence report was prepared. The report concludes the Sentencing Guidelines base offense level is nine with an increase of two points for the defendant's supervisory role in the offense, an increase of two points for obstruction of justice, and a decrease of two points for acceptance of responsibility. The report also states Elias falls into criminal history category one. According to the Guidelines, an offense level of eleven and a criminal history category of one results in a sentencing range of eight to fourteen months and a mandatory period of supervisory release of two to three years.

Prior to sentencing, Elias filed a motion to withdraw his guilty plea and later a motion to reconsider his motion to withdraw, both of which were denied. Elias also made factual objections to the presentence report, and an evidentiary hearing was conducted. The court rejected Elias' objections and sentenced him to fourteen months' imprisonment, a supervised release of three years, a $5,000 fine, and a special assessment of $50.

II. Discussion

A. Compliance with Rule 11

A guilty plea must be knowing and voluntary. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 of the Federal Rules of Criminal Procedure prescribes procedures designed to ensure a plea is made knowingly and voluntarily. United States v. Gomez-Cuevas, 917 F.2d 1521, 1524-25 (10th Cir.1990). We generally review de novo a district court's compliance with the requirements of Rule 11 before accepting a guilty plea. Id. at 1524; see United States v. Rhodes, 913 F.2d 839, 843 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1079, 112 L.Ed.2d 1184 (1991). We review a court's decision regarding a factual basis for a guilty plea for an abuse of discretion. See United States v. Keiswetter, 860 F.2d 992, 996 (10th Cir.1988); United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980).

Rule 11 requires a district court to address a defendant in open court and determine he understands a number of facts before accepting a plea of guilty, including: (1) the nature of the charge; (2) the mandatory minimum and maximum possible penalty provided by law, including any supervised release term; and (3) the fact the court must consider any applicable sentencing guidelines but may depart from them under some circumstances. Fed.R.Crim.P. 11(c)(1). The court also must advise an unrepresented defendant of his right to court-appointed counsel. The court must explain that the defendant has the right not to plead guilty, to a jury trial, to confront and cross-examine witnesses, and to be free from compelled self-incrimination. Further, the court must inform the defendant he waives the right to a jury trial by pleading guilty. Fed.R.Crim.P. 11(c)(2)-(4).

To further protect a defendant who enters into a plea agreement, Rule 11(f) provides "the court should not enter a judgment ... without making such inquiry as shall satisfy it that there is a factual basis for the plea." The advisory committee's notes explain this duty is meant to protect a defendant who may understand a charge but does not realize his conduct fails to fall within that charge. Id. advisory committee's note (1966 amendment). The court may satisfy this requirement by questioning the defendant or the government or by examining the presentence report to determine whether the conduct to which the defendant admits constitutes an offense charged in the indictment. If the court is not satisfied a factual basis for that charge is present, the court should set aside the plea and enter a plea of not guilty. Id.

Elias argues the district court failed to advise him fully of the nature of the charge against him. A court may satisfy Rule 11 and constitutional standards by explaining in plain terms the nature of the charge. Stinson v. Turner, 473 F.2d 913, 916 (10th Cir.1973). The charge to which Elias pleaded guilty was violation of 18 U.S.C. Sec. 922(a)(6), which makes it unlawful to "knowingly ... make any false ... statement or ... exhibit any false ... identification ... likely to deceive [a firearms] dealer." Although this provision requires that a defendant "knowingly" make a false statement to a dealer, it does not require a showing the defendant knowingly violated the law. United States v. Beebe, 467 F.2d 222, 226 (10th Cir.1972), cert. denied, 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974); see United States v. Cornett, 484 F.2d 1365, 1367 (6th Cir.1973); Cody v. United States, 460 F.2d 34, 38 (8th Cir.1971), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972).

Here, the court apprised Elias of the nature of the section 922 charge in discussing the plea agreement at the hearing. The court explained Elias was charged with providing a false statement in the acquisition of a firearm. Elias indicated to the court he understood this basis for his plea and had discussed the charge with his attorney. Because providing false information to a firearms dealer violates section 922(a)(6), the court's...