967 F.2d 1036 (5th Cir. 1992), 90-8327, United States v. Martirosian

Docket Nº:90-8327.
Citation:967 F.2d 1036
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Stefan MARTIROSIAN, Defendant-Appellant.
Case Date:July 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1036

967 F.2d 1036 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Stefan MARTIROSIAN, Defendant-Appellant.

No. 90-8327.

United States Court of Appeals, Fifth Circuit

July 27, 1992

Page 1037

Melvin J. Klein, Dallas, Tex., Stephen M. Orr, Austin, Tex., Stephen Hogg, Northridge, Cal., for defendant-appellant.

Richard L. Durbin, Jr., Philip Police, W.W. Torrey, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Having been convicted on a plea of guilty to possession of cocaine with intent to distribute, Stefan Martirosian's primary contention on appeal is that the district court's failure, in accepting his plea, to inform him of the mandatory minimum penalty provided by law for the offense, as mandated by Fed.R.Crim.P. 11(c)(1), constitutes a complete failure to address a Rule 11 core concern, requiring that he be allowed to plead anew. We VACATE and REMAND.

I.

In April 1989, Martirosian, a resident alien and Armenian citizen of the former Soviet Union, was a passenger aboard a bus stopped at the United States Border Patrol checkpoint at Sierra Blanca, Texas. A Border Patrol agent boarded the bus to conduct a citizenship check. Martirosian stated that he was a resident alien, but did not have his resident alien card with him. As Martirosian was being removed from the bus, the agent noticed a travel bag located above his seat. After Martirosian denied ownership of it, the agent took it to search for citizenship papers. The search revealed, among other things, 143 ounces of cocaine and a Russian language newspaper.

Martirosian was charged in May 1989 in a one-count indictment with possession of more than 500 grams of cocaine with intent to distribute (cocaine count), in violation of 21 U.S.C. § 841(a)(1). A superseding indictment added charges that Martirosian possessed phenobarbital with intent to distribute, also in violation of § 841(a)(1); falsely represented himself to be a United States citizen at the checkpoint, in violation of 18 U.S.C. § 911; and failed to have in his possession his alien registration receipt card, in violation of 8 U.S.C. § 1304(e).

In October 1989, Martirosian entered into a...

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