U.S. v. Buonocore
| Decision Date | 18 July 2005 |
| Docket Number | No. 03-4201.,03-4201. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tony BUONOCORE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bradley P. Rich (Peter D. Goodall with him on the briefs), Yengich, Rich & Xaiz, Salt Lake City, Utah, for Defendant-Appellant.
Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United States Attorney, with her on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.
Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.
Tony Buonocore ("Defendant") was charged in a two-count indictment with knowingly and intentionally distributing ephedrine and pseudoephedrine knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). Defendant entered into an agreement with the government to plead guilty to one count in exchange for dismissal of the other count. At the change of plea hearing, the district court characterized Defendant's guilty plea as an Alford plea or a plea of nolo contendere because Defendant refused to admit an element of the offense. Pursuant to its general policy against such pleas, the district court rejected Defendant's plea. Defendant proceeded to trial and was convicted on both counts. In this appeal, Defendant challenges the district court's rejection of his plea and its refusal to give the "innocent merchant" jury instruction requested by Defendant. In addition, Defendant argues he is entitled to resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM the judgment and sentence of the district court.
Defendant owns a company that was a licensed distributor of ephedrine and pseudoephedrine products. Terry Long, the owner of several tobacco and convenience stores, was one of Buonocore's customers. In May 2001, with Long's assistance as an informant, agents of the Drug Enforcement Administration ("DEA") arranged a controlled purchase of ephedrine and pseudoephedrine products from Defendant. In the audio-recorded transaction of the controlled purchase, Long said to Defendant that "the meth cooks must be cookin like crazy," and "I must have had a run, there's a bunch of meth cooks in town, that's what their [sic] using them for so ..."
Based on this controlled purchase, Defendant was charged in a two-count indictment with knowingly and intentionally distributing ephedrine (Count I) and pseudoephedrine (Count II) knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2).1 Before trial, Defendant
agreed to plead guilty to Count I in exchange for the government's agreement to dismiss Count II and recommend a sentence of probation only.
At the outset of the change of plea hearing, the district court advised Defendant that it would not accept the plea if Defendant would not admit guilt. Defense counsel indicated that this would not be a problem. Later, the court went through the elements of the offense with Defendant to determine the factual basis of the plea. The court asked Defendant, "Did you know that that ephedrine was going to be used in the manufacture by someone of methamphetamine?" Defendant responded, "No, I didn't, Your Honor."
Defense counsel then objected, "I think if the court will allow, I think under the Supreme Court decision—." The court interrupted, The court rejected Defendant's plea and set the case for trial.
Defendant filed a written objection, arguing that the court abused its discretion by rejecting Defendant's plea pursuant to its policy against Alford and nolo pleas. The district court overruled Defendant's objection, affirming its denial of Defendant's plea. Defendant was convicted on both counts and sentenced to 97 months in prison followed by 36 months of supervised release. Defendant timely filed this appeal.
A district court's decision to reject a plea is reviewed for abuse of discretion. See United States v. Young, 45 F.3d 1405, 1414 (10th Cir.1995).
Defendant argues that he was prepared to admit his guilt at the change of plea hearing but that the district court, because of its misunderstanding of the applicable statute, mis-characterized Defendant's intended guilty plea either as an Alford plea or as a plea of nolo contendere.2 In the alternative, Defendant argues that even if the district court properly characterized his plea as an Alford or nolo plea, the
court abused its discretion by rejecting that plea pursuant to its policy against such pleas. We address each argument in turn.
Under 21 U.S.C. § 841(c)(2), it is unlawful knowingly or intentionally to "possess[] or distribute[] a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance...." 21 U.S.C. § 841(c)(2) (emphasis added). At the change of plea hearing, the district court asked Defendant only whether he "knew" that the products he was selling would be used to manufacture methamphetamine and did not ask him whether he "had reasonable cause to believe" that the products would be used to manufacture methamphetamine. When Defendant denied that he "knew" that the products would be used to manufacture methamphetamine, the district court immediately rejected his plea, characterizing it as an Alford or nolo plea.
Defendant now argues that he was prepared to admit that he "had reasonable cause to believe" that the products he sold would be used to manufacture methamphetamine but that the district court, by prematurely terminating the plea colloquy, did not allow him to admit his guilt and thus mis-characterized his plea as an Alford or nolo plea.
In general, this court will not consider a theory on appeal not raised or ruled on below. See Tele-Communications, Inc. v. Comm'r of Internal Revenue, 104 F.3d 1229, 1232-33 (10th Cir.1997). Defendant failed to object to the district court's rejection of his plea on the basis that the court, due to its premature termination of the plea colloquy, mis-characterized Defendant's plea as an Alford or nolo plea. To the contrary, Defendant expressly admitted that he intended to offer an Alford or nolo plea and objected only on the ground that the district court's general policy against such pleas was an abuse of the court's discretion. Specifically, in his written objection following the change of plea hearing Defendant said, "Because the Defendant would not `admit' guilt but rather was only willing to accept punishment for the alleged crime, the court required him to try the matter." Accordingly, the district court had no notice of Defendant's current objection and was therefore unable to make a ruling or take corrective action based on that objection.
Attempting to avoid a finding of waiver, Defendant points out that at the beginning of the change of plea hearing he put the court on notice that he intended to admit guilt and that this notice should serve as an objection that preserves his argument for appeal. However, at the beginning of the change of plea hearing, the court instructed the parties that it would not accept a plea of nolo contendere, that Defendant would be required to admit guilt. Defense counsel responded that this would not be a problem. Thus Defendant's placing the court on notice that he intended to admit guilt does not remedy Defendant's failure to object to the district court's alleged misunderstanding of the later plea colloquy, which is the basis of Defendant's current objection.
Because Defendant failed to raise this issue below, we review the district
court's action for plain error only. See United States v. Brown, 316 F.3d 1151, 1155 (10th Cir.2003). Under the plain error standard of review, we may exercise our discretion to reverse (1) error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Defendant has not demonstrated that the district court plainly erred in characterizing his plea as an Alford or nolo plea. Defendant acknowledged in his written objection that "Defendant would not `admit' guilt but rather was only willing to accept punishment for the alleged crime," and then argued that the district court abused its discretion by refusing to accept any plea accompanied by a protestation of innocence. Defendant's objection demonstrates that he did not intend to admit his guilt regardless of the questions the district court asked him, but instead planned to offer an Alford or nolo plea. Accordingly, the district court did not plainly err in characterizing Defendant's plea as an Alford or nolo plea.
Defendant argues in the alternative that, even if the district court properly characterized Defendant's plea as an Alford or nolo plea, the district court abused its discretion by rejecting the plea pursuant to the court's general policy against such pleas.
The Supreme Court has held that a district court may accept a plea of guilty even if that plea is accompanied by...
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