U.S. v. Aguilar-Muniz, AGUILAR-MUNI
| Decision Date | 09 March 1998 |
| Docket Number | AGUILAR-MUNI,No. 96-10501,D,96-10501 |
| Citation | 156 F.3d 974 |
| Parties | 98 Cal. Daily Op. Serv. 7254, 98 Daily Journal D.A.R. 10,047 UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kent V. Anderson, West Sacramento, CA, for defendant-appellant.
Elena J. Duarte, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CR-95-504 WBS.
Before: NOONAN and THOMAS, Circuit Judges, PREGERSON, ** District Judge.
Appointed counsel for Francisco Aguilar-Muniz has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious issues for appeal and requesting leave to withdraw as counsel. Although notified of his right to respond to counsel's motion to withdraw, appellant has failed to respond. After consideration of the issues identified by counsel, and after an independent review of the record, we grant the motion to withdraw and affirm the decision below.
On November 9, 1995, Francisco Aguilar-Muniz ("Aguilar-Muniz") was indicted along with four co-defendants for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). On June 4, 1996, Aguilar-Muniz waived indictment and pleaded guilty to a superseding information charging conspiracy to manufacture methamphetamine.
On June 27, 1996, the government moved to be relieved of its obligations under Aguilar-Muniz's plea agreement on the grounds that Aguilar-Muniz had not testified truthfully at the trial of co-defendant Jose Luis Buenrostro.
On August 15, 1996, Aguilar-Muniz waived his right to a hearing on the government's motion to withdraw the previous plea agreement, and pleaded guilty to a new superseding indictment charging possession of pseudoephedrine with knowledge that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2) and use of a telephone to facilitate conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b).
Aguilar-Muniz was sentenced on October 30, 1996 to the statutory maximum of fourteen years imprisonment.
Aguilar-Muniz timely noticed this appeal on November 5, 1996. Attorney Kent Verne Anderson was appointed counsel on November 6, 1996. Anderson now moves to withdraw, and files a brief pursuant to Anders, asserting that there are no non-frivolous issues for appeal. As required by Anders, counsel has filed a brief identifying possible issues for appeal.
As part of the plea agreement, Aguilar-Muniz had waived the right to appeal his conviction. Counsel has identified two possible issues regarding the waiver of appeal: (1) Did the district court comply with Rule 11 of the Federal Rules of Criminal Procedure in taking the defendant's plea? (2) Did the district court mislead Aguilar-Muniz to believe that he had not waived the right to appeal?
The validity of a waiver of the right to appeal is reviewed de novo. See United States v. Petty, 80 F.3d 1384, 1386 (9th Cir.1996); United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995); United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994).
Rule 11 of the Federal Rules of Criminal Procedure requires that before accepting a plea of guilty, the court must address the defendant personally in open court to inform the defendant of and determine that the defendant understands the nature of the charges, any mandatory minimum or maximum penalty, the availability of parole or supervised release, the applicability of Sentencing Guidelines, and the available departures therefrom. See Fed.R.Crim.P. 11(c). In addition, the court must inform the defendant of the rights to plead not guilty, to be tried before a jury, to be represented by counsel, to confront and cross-examine witnesses, and against compelled self-incrimination. See Fed.R.Crim.P. 11(c)(3). The court must determine whether the plea is voluntary, and whether it is supported by a factual basis. Fed.R.Crim.P. 11(d), (f).
In United States v. DeSantiago-Martinez, 38 F.3d 394 (9th Cir.1992), we held that "a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient." Id. at 395. Any failure of the trial court to address waiver of appeal during the Rule 11 colloquy does not, by itself, invalidate the waiver.
The adequacy of a Rule 11 plea hearing is reviewed de novo. See United States v. Alber, 56 F.3d 1106, 1109 (9th Cir.1995). Whether the trial court's colloquy with the defendant satisfies the requirements of Rule 11 is also reviewed de novo. See United States v. Smith, 60 F.3d 595, 597 n. 1 (9th Cir.1995). Technical failure to comply with Rule 11 is not reversible error unless it affects the defendant's substantial rights. See Fed.R.Crim.P. 11(h).
The record demonstrates that the district court complied with Rule 11 in accepting Aguilar-Muniz's plea. The court advised Aguilar-Muniz of the elements of both charges against him. As to the charge of using a telephone to facilitate a conspiracy to manufacture drugs, the court advised Aguilar-Muniz of the definition of a conspiracy. Cf. United States v. Bruce, 976 F.2d 552 559-60 (9th Cir.1992) (). The court informed Aguilar-Muniz of the maximum penalty for both counts, and of the possible collateral consequence of deportation. The court also advised Aguilar-Muniz that his exact sentence could not be determined under the Sentencing Guidelines until a pre-sentence report had been prepared. The court advised Aguilar-Muniz of his rights to plead not guilty, to a jury trial, to assistance of counsel, to confront witnesses, and to testify or decline to testify.
The court determined that there was a factual basis for the plea. The trial court elicited Aguilar-Muniz's agreement to the details of the conduct underlying the charges. In addition, the trial court relied upon its recollection of the testimony at the Buenrostro trial.
The district court also determined that Aguilar-Muniz's plea was knowing and voluntary and that he understood the concept of waiver. Although Aguilar-Muniz did not initially seem to understand the concept of waiver, the district court took pains to repeat its explanation and to direct defense counsel to explain the term to Aquilar-Muniz. Based on the defendant's responses after this extended colloquy, the district court found that the defendant's waiver was knowing and voluntary. In reviewing the record de novo, we find no error in the district court's determination.
Counsel notes that the district court may have undermined the knowing and voluntary nature of the appeal waiver when the court informed Aguilar-Muniz of his statutory right to appeal. If the trial court advises the defendant during sentencing that he may appeal the sentencing findings, the court's oral pronouncement defeats a written appeal waiver. See Buchanan, 59 F.3d at 917-18. Here, however, the district court merely advised Aguilar-Muniz that he had a statutory right to appeal, as required by Rule 32(c)(5) of the Federal Rules of Criminal Procedure. As part of the same statement, however, the district court advised Aguilar-Muniz that his plea agreement waived this right:
You also have a statutory right to appeal your sentence under certain circumstances, particularly if you think the sentence is contrary to law. However, a defendant may waive those rights as part of the plea agreement, and you have entered into a plea agreement which waives some or all of your rights to appeal.
Such waivers are generally enforceable. But if you believe the waiver is unenforceable, you can present that theory to the appellate court.
The court's statement here is not similar to the court's unambiguous statement in Buchanan that the defendant had a right to appeal and should file any appeal within ten days. See Buchanan, 59 F.3d at 917.
We distinguished Buchanan in United States v. Schuman, 127...
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