U.S. v. Camacho

• Decision Date: 21 November 2000
• Docket Number: No. 99-12802,99-12802
• Citation: 233 F.3d 1308
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHANNA ISABEL CAMACHO, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1308

233 F.3d 1308 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHANNA ISABEL CAMACHO, Defendant-Appellant.

No. 99-12802

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

November 21, 2000

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Georgia

Before EDMONDSON and BIRCH, Circuit Judges, and BLACKBURN^*, District Judge

BLACKBURN, District Judge:

Appellant Johanna Isabel Camacho appeals her conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1), asserting that the district court violated Rule 11 of the Federal Rules of Criminal Procedure in accepting her guilty plea and entering judgment pursuant thereto. Finding no reversible error, we affirm.

I.

On October 21, 1998, Appellant, along with several co- defendants, was indicted by a grand jury under Count One of the indictment for conspiracy to distribute cocaine in violation of 21 U.S.C. 846 and under Count Five of the indictment for possession of cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Specifically, Count Five charged:

On or about July 8, 1997, in the Northern District of Georgia, the defendants,

Byron Leonel Portillo,

Johanna Isabel Camacho,

Everaldo Guzman Garcia, and

Joel Robles,

aided and abetted by each other and by Wilson Antonio Canas, who is not named in this indictment as a defendant, knowingly and intentionally possessed cocaine hydrochloride, a Schedule II narcotic controlled substance, with the intent to distribute the said controlled substance, in violation of Title 21, United States Code, Section 841(a)(1), and Title 18, United States Code, Section 2.

(R. Vol. 1, Doc. 1 at. 6-7.)

Although Appellant initially pled not guilty to these charges, on April 12, 1999, Appellant entered into a negotiated plea agreement with the United States, in which she agreed to plead guilty to Count Five of the indictment and to cooperate with the United States. Appellant also agreed to waive her right to appeal the sentence. In exchange, the United States agreed to dismiss Count One of the indictment against Appellant at the time of sentencing. The parties executed a Negotiated Plea and a letter confirming the agreement and setting forth in detail the terms of the agreement. At the conclusion of the letter, Appellant acknowledged by her signature that she "ha[d] read th[e] agreement and carefully reviewed every part of it with [her] attorney," that she understood the agreement, and that she voluntarily agreed to its terms. (R. Vol. 1, Doc. 153 at 7.)

Contained in the letter confirming the plea agreement were several provisions pertinent to this appeal. First, the agreement stated that the maximum statutory sentence was forty years' incarceration, while the mandatory minimum term of incarceration was five years. Additionally, the agreement stated that Appellant was subject to a fine of up to $2 million, a term of supervised release of at least four years, and a mandatory special assessment of $100. With respect to sentencing, the agreement provided that the base level for the offense to which Appellant was pleading guilty was 38; that the Government's position was that Appellant's offense level should be adjusted upward by two levels because of a firearm that was seized at the time of her arrest; that the parties agreed that Appellant's offense level should be reduced by two levels because she played a minor role in the offense of conviction; and that Appellant's offense level should be reduced further by two levels for acceptance of responsibility, provided Appellant continued to manifest acceptance of responsibility. The agreement also stated, however:

Ms. Camacho understands that in the federal criminal system, sentencing is a matter which is determined by the Court, in accordance with the Sentencing Guidelines . . . and that the sentencing court is not bound by any factual agreement between the parties, or by any recommendation made by the United States.

(Id. at 4.) Finally, for purposes of this appeal, the agreement provided:

Ms. Camacho specifically understands that this agreement is only between herself and the United States Attorney for the Northern District of Georgia. Ms Camacho understands that the District Court is not a party to this agreement, and nothing herein is intended to bind the District Court to take any action, and the District Court's failure to accept one or more of the recommendations made pursuant to this agreement does not constitute either a breach of this agreement by the government, or grounds for the withdrawal of the plea of guilty.

(Id. at 6-7.)

On April 12, 1999, the district court conducted a plea colloquy pursuant to Federal Rule of Criminal Procedure 11, during which it questioned Appellant concerning her guilty plea. The district court also accepted the guilty plea of Appellant's co-defendant, Byron Leonel Portillo, during this hearing.¹ The district court began the hearing by informing Appellant and Mr. Portillo that by pleading guilty they were waiving their right to trial, including their right to present witnesses on their behalf, to cross-examine the Government's witnesses, and to testify. The district court further informed Appellant and Mr. Portillo that if there were no plea agreements the Government would have to prove their guilt as to each charge beyond a reasonable doubt. Concerning the offense to which Appellant was pleading guilty, the district court stated:

Now, what the Government would have to prove beyond a reasonable doubt as to Ms. Camacho is that on or about July 8 of 1997 you, aided and abetted by others named in the indictment, possessed cocaine hydrochloride. In [sic] was a Schedule II controlled substance. That the possession was with the intent to distribute it, and that you knowingly and intentionally possessed that product. The Government would have to prove each of those things beyond a reasonable doubt before you could be convicted.

(R. Vol. 4 at 3.) Later during the hearing, the district court specifically questioned Appellant concerning the written plea agreement executed by Appellant and representatives of the Government. Appellant acknowledged the written agreement, including the letter dated April 12, 1999. Appellant acknowledged that the letter and the official plea agreement document constituted her plea agreement with the United States, that she had reviewed the documents with her attorney, that she understood the terms of the agreement, and that she wished to enter into the agreement with the United States. With respect to the voluntary nature of her plea and her guilt or innocence in the charged offense, the district court asked whether Appellant was "in fact guilty of what [she was] pleading to," to which Appellant responded, "Yes." (Id. at 12.)

Also during the course of the April 12 hearing, the district court discussed with Appellant the consequences of her guilty plea. Concerning her potential sentence, the district court overstated the maximum possible term of incarceration. Specifically, the district court stated, "As to you, Ms. Camacho, the maximum punishment is 340 years in prison and a mandatory minimum of five years, $2 million fine, and a term of supervised release of at least four years after any prison term, and a mandatory special assessment of $100." (Id. at 12-13.) With respect to any promises contained in the plea agreement concerning sentence, the district court stated, "You understand that the agreement between you and the Government concerning guideline matters are matters between you and the prosecutor, the court is not a party to that; do you understand that?" (Id. at 13.) Appellant then responded, "Yes." (Id.) Later, when questioning Mr. Portillo concerning his decision to plead guilty, the district court stated, "You understand that any agreements you have with the prosecuting attorney do not bind the court . . . ." (Id. at 15.)

Finally, the district court questioned the Government's attorney as to what evidence would support the guilty pleas entered by Appellant and Mr. Portillo. With respect to Appellant, the Government's attorney stated:

On July-in the period of time leading up to July 8, 1997 an individual working with Drug Enforcement Administration had approached Mr. Wilson Canas for the purpose of acquiring a quantity of cocaine hydrochloride.

Mr. Canas knew Ms. Camacho and knew Ms. Camacho to work for Mr. Portillo. Ms. Camacho agreed to get Mr. Canas a quantity of cocaine hydrochloride. On the evening of the 8th of July, listed in Count 5, Mr. Canas met with Ms. Camacho and Mr. Portillo. Mr. Portillo made a telephone call and Mr. Guzman-Garcia and Mr. Robels [sic] arrived-was out at the Circuit City on Jimmy Carter Boulevard at I-85. Ms. Camacho and Mr. Canas then got into the car and they drove to the Publix parking lot on Peachtree Road. And I believe, your Honor, and it escapes me, but I believe that is around Peachtree Battle.

They met there with the individual or they were going to meet with the individual who was to make a purchase from Mr. Canas. When they arrived and saw the individual first was Ms. [sic] Andre Cark, the DEA agent who was acting undercover, but had with him a man by the name of Salese, who was known to Mr. Robles to have been arrested. Mr. Robeless [sic], when he saw Mr. Salese, he pulled into a parking space and immediately then backed out, and then they began approximately a five-mile long slow speed chase where finally at the Brookhaven MARTA station the DEA agents were able to pull the car over. Inside the automobile was one kilogram of cocaine hydrochloride.

(Id. at 19-20.) The Government's attorney then informed the district court that the passengers in the car were Appellant, Mr. Canas, Mr. Robles, and Mr. Guzman-Garcia and that under the driver's seat was a loaded firearm. Following this proffer, the...