U.S. v. Espinal

• Citation: 634 F.3d 655
• Decision Date: 07 March 2011
• Docket Number: Docket No. 09–4344–cr.
• Parties: UNITED STATES of America, Appellee,v.Jose D. ESPINAL, also known as Nano, Cesar David Valdez–Castro, also known as David, also known as Cesar D. Valdez–Castro, also known as Malicia, Defendants,Santo Laiz, also known as Martin, Defendant–Appellant.*
• Court: U.S. Court of Appeals — Second Circuit

634 F.3d 655

UNITED STATES of America, Appellee,

v.Jose D. ESPINAL, also known as Nano, Cesar David Valdez–Castro, also known as David, also known as Cesar D. Valdez–Castro, also known as Malicia, Defendants,Santo Laiz, also known as Martin, Defendant–Appellant.*

Docket No. 09–4344–cr.

United States Court of Appeals, Second Circuit.

Submitted: Jan. 18, 2011.Decided: March 7, 2011.

Robert J. Boyle, New York, NY, for Defendant–Appellant.Daniel A. Spector, Susan Corkery, Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Appellee.Before: JOHN M. WALKER, JR., STRAUB, AND LYNCH, Circuit Judges.GERARD E. LYNCH, Circuit Judge:

Santo Laiz pled guilty in the Eastern District of New York (Arthur D. Spatt, J.) to possessing with intent to distribute cocaine, and conspiring to do so, in violation of 21 U.S.C. §§ 841(a) and 846, and was sentenced principally to twenty years' imprisonment. He appeals his conviction, contending that his plea was involuntary. He also challenges his sentence, arguing that the prosecution failed to prove beyond a reasonable doubt the facts underlying a prior felony information used to enhance his sentence under 21 U.S.C. § 851. We find that Laiz's guilty plea was voluntary, and therefore affirm his conviction. However, for the reasons discussed below, we vacate his sentence and remand for resentencing.

I. Conviction

Laiz argues that his guilty plea was rendered involuntary because he received confusing and misleading information about the immigration consequences of his conviction. The argument is unavailing.

Immediately prior to jury selection on October 11, 2006, with Magistrate Judge E. Thomas Boyle presiding, Laiz and his co-defendant, Jose D. Espinal, pled guilty to the charges in the superseding indictment. At the beginning of the plea proceeding, the court asked Laiz and Espinal whether they were United States citizens. Each said “no.” The following colloquy then ensued:

COURT: The crimes that you are going to be pleading guilty to here ... carry what is called mandatory deportation. That means it is certain, it's automatic, because of the nature of the crimes to which you are pleading guilty. Have you discussed that with your respective attorneys?

DEFENDANT ESPINAL: Yes, sir.

DEFENDANT LAIZ: Yes, sir.

COURT: And you understand that that is a mandatory consequence of any plea that is entered to the charges before this Court?

DEFENDANT ESPINAL: Yes, your honor.

DEFENDANT LAIZ: Yes.

Later in the same proceeding, the prosecutor noted that Laiz faced different statutory penalties than Espinal—specifically, that the mandatory minimum sentence applicable to Laiz was twenty years in prison, rather than ten—because a prior felony information had been filed against him. The transcript reflects that in the course of this discussion, the prosecutor stated that “[t]he deportation penalty the Court articulated also doesn't apply to Mr. Laiz.” That was incorrect, because Laiz is not a United States citizen and the deportation penalty therefore did apply to him, as the court had previously stated.

In a submission filed and served on Laiz before sentencing, the prosecutor pointed out the mistake, suggesting that it was a “typographical error” in the transcript. Laiz did not respond. Again at the sentencing proceeding, the prosecutor called attention to the apparent error, stating that although he did not have a perfectly clear recollection of the plea proceeding, “I believe that's a typographical error and I believe as is indicated earlier in the transcript Mr. Laiz was apprised of the deportation penalty. But I want to raise this so there's no issue and that the defendant obviously understands that deportation is mandatory in this case.” The court stated, “Well, I don't know what, at this late stage, what you are going to do, except correct the record. That's all. I'm not going to get into that.” Laiz again failed to respond in any way. Neither the government nor defense counsel addressed the issue further.

Laiz argues on appeal that his conviction should be vacated because he received contradictory information about the immigration consequences of his conviction, in violation of Rule 11 of the Federal Rules of Criminal Procedure, rendering his plea involuntary. Because Laiz never sought to withdraw his plea, and did not object at any time or in any way to the alleged Rule 11 violation in the district court, we review for “plain error.” United States v. Vaval, 404 F.3d 144, 151 (2d Cir.2005). “In the context of a Rule 11 violation, to show plain error, a defendant must establish that the violation affected substantial rights and that there is ‘a reasonable probability that, but for the error, he would not have entered the plea.’ ” Id., quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Absent a finding of fact by the district court that the transcript was incorrect, we assume for purposes of this appeal that the transcript accurately reported the prosecutor's words. See 28 U.S.C. § 753(b) (“The transcript in any case certified by the reporter ... shall be deemed prima facie a correct statement of the testimony taken and proceedings had.”); Abatino v. United States, 750 F.2d 1442, 1445 (9th Cir.1985) (“The reporter's transcript of a trial is presumed to be accurate.”).

Laiz cannot show that but for the prosecutor's mistake he would not have pled guilty. He argues that he entered his plea reluctantly, and that if he had clearly understood the immigration consequences of his conviction, he would not have pled, because deportation would separate him from his family. But this argument is unpersuasive in the face of the actual record below. When the court apprised him of the deportation penalty at the outset of the plea proceeding, he said that he understood that deportation was mandatory and that he had discussed the issue with his attorney, and he expressed no reluctance to go forward. After the plea had been entered but before sentence was imposed, the government twice noted its erroneous statement during the plea colloquy—once in its sentencing submission and once at the sentencing proceeding. Nevertheless, Laiz never gave the slightest indication that he was surprised by this information, or that he had relied in any way on the prosecutor's misstatement, and he never sought to withdraw his plea. On these facts, we cannot say that there is a reasonable probability that Laiz would not have pled guilty absent the prosecutor's misstatement. We therefore affirm his conviction.

II. Sentence

Laiz next argues that we should vacate his sentence and strike the prior felony information used to enhance it, because the government failed to prove beyond a reasonable doubt that he had the requisite prior conviction. That claim is not so easily dismissed.

A. Background

Laiz was indicted on November 16, 2005. On September 7, 2006, the government advised him that if he did not plead guilty by September 15, it would file a prior felony information pursuant to 21 U.S.C. § 851(a). Filing such an information would, among other things, enhance the applicable mandatory minimum sentence from ten years in prison to twenty.¹ Laiz did not plead guilty by the government's deadline, and on October 3, 2006, the government filed the prior felony information, alleging that Laiz had been convicted of a felony drug offense under the name “Jose Luis Lai” in Lawrence, Massachusetts, on November 8, 1993. As discussed above, Laiz nevertheless did eventually plead guilty. During the guilty plea proceeding, the magistrate judge advised Laiz of the prior felony information, and made sure that Laiz understood that by virtue of its filing, he faced an enhanced mandatory minimum sentence. However, while the magistrate judge elicited Laiz's admission that he was guilty of the offense to which he was pleading guilty, the magistrate judge did not ask whether Laiz admitted to having previously been convicted. After the plea was entered, a sentencing date was scheduled.

Prior to sentencing, Laiz and his attorney made separate submissions raising various legal challenges to the propriety of the prior felony information, but neither submission clearly denied the information's allegation that Laiz had in fact been convicted of the prior narcotics felony. Apparently concerned that the record was somewhat ambiguous with respect to Laiz's position concerning the prior felony, the prosecutor sought clarification, initially stating his “understanding that the defendant ... is not challenging, as a factual matter, the [prior] conviction.” When the court asked defense counsel if that understanding was correct, counsel responded that he had “no grounds to believe that Mr. Laiz was not convicted,” but that he had not verified the conviction himself, and that he was “taking the word of the government ... [and] of the probation department.”

At that point in the proceeding, Laiz still had not been asked formally to affirm or deny the conviction. Rather than make that inquiry, upon hearing defense counsel's response, the district court asked the prosecutor how the government knew of the defendant's prior conviction. The prosecutor responded by handing up two documents. The first, a Massachusetts rap sheet, states on its face that because it is “not supported by fingerprints,” the reader should “check that the name referenced below matches the name and date of birth of the person requested.” The rap sheet indicated that one “Jose Luis Lai,” also known as “Jose Pichardo,” “Santo Ramon Laz,” “Elias DeJesus,” and “Santo Ramon Laiz,” with a birthdate of December 3, 1964, had been convicted in Massachusetts on November 8, 1993, for distributing cocaine, possessing heroin with the intent to distribute, and conspiracy to distribute controlled substances. The government also produced a Massachusetts docket sheet indicating a...