U.S. v. Gomez-Cuevas, GOMEZ-CUEVA

• Decision Date: 07 November 1990
• Docket Number: No. 89-2189,D,GOMEZ-CUEVA,89-2189
• Citation: 917 F.2d 1521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artemioefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1521

917 F.2d 1521

UNITED STATES of America, Plaintiff-Appellee, v. Artemio GOMEZ-CUEVAS, Defendant-Appellant.

No. 89-2189.

United States Court of Appeals, Tenth Circuit.

Nov. 7, 1990.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, on the brief for defendant-appellant.

William L. Lutz, U.S. Atty., and Stephen R. Kotz, Asst. U.S. Atty., on the brief for plaintiff-appellee.

Before MOORE, SETH and TACHA, Circuit Judges.

TACHA, Circuit Judge.

On April 13, 1989, defendant-appellant Artemio Gomez-Cuevas (Gomez) was charged by a grand jury on two counts. Count I charged possession with intent to distribute more than fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. Sec. 2. Count II charged importation of more than fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 952(a) and 960(b)(3) and 18 U.S.C. Sec. 2. Gomez entered a plea of guilty to Count I, which the district court accepted. Under the plea agreement, Count II was dropped, as were charges against Gomez' co-defendant.

Gomez alleges on appeal he should be allowed to enter a new plea because he did not enter his plea knowingly and voluntarily. He contends the district court erred in failing to advise him: (1) of the nature of the charge; (2) of the rights included in his right to a jury trial; (3) that his responses could be used against him in a perjury prosecution; and (4) that the Sentencing Guidelines would apply, all in violation of Rule 11 of the Federal Rules of Criminal Procedure. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm. ¹

Before accepting Gomez' plea, the district court placed Gomez under oath and, through an interpreter, established his ability to comprehend the proceedings. The district judge asked Gomez whether he fully understood the charges and had had sufficient time to discuss them with his attorney. Gomez responded affirmatively to both questions. The judge explained Gomez was presumed innocent and the government would have to prove its case to a twelve-member jury, which would have to agree unanimously, before he could be found guilty of the charges. The court ascertained that Gomez understood he would forfeit his right to a jury trial by entering a plea of guilty.

The judge further advised Gomez that if he entered a plea of guilty and the court accepted the plea, then the court could impose the statutory maximum penalty, including a sentence of twenty years in prison, a fine of up to $1,000,000, and a supervised release period of at least three years. Gomez stated he understood the possible penalties.

The court also informed Gomez he had a right not to incriminate himself. The court explained he would lose this right if he entered a plea of guilty because the court must ask questions about the charge to make certain the plea was proper. Gomez indicated he understood. The court then questioned Gomez as to the factual basis for the plea. Gomez stated he knew he had the marijuana and he was going to distribute it. Following this discussion, Gomez pleaded guilty to Count I of the indictment.

The parties filed the executed plea agreement with the court. The court asked Gomez whether his attorney had obtained his consent and authority to negotiate the plea agreement on his behalf. Gomez responded "yes." Gomez also told the court that neither the government nor anyone else had made any promises in exchange for his plea of guilty beyond the terms of the plea agreement. He further stated no one had threatened him or coerced him to plead guilty. Finally, Gomez testified he entered the guilty plea voluntarily and willingly.

Gomez now asserts the court failed to comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure during the plea hearing. The issue of whether a district court has complied with Rule 11 before accepting a guilty plea is primarily a question of law subject to de novo review. See United States v. Rhodes, 913 F.2d 839, 843 (10th Cir.1990) (to be reported at 913 F.2d 839); United States v. Jamarillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988).

A defendant's guilty plea must be knowing and voluntary. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). ² Rule 11 prescribes procedures designed to ensure that pleas are entered knowingly and voluntarily. We agree with the Fifth Circuit that "the values lying at the heart of the rule's concerns [are] absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea." United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 and cert. denied sub nom. Flanagan v. United States, 445 U.S. 971, 100 S.Ct. 1665, 64 L.Ed.2d 249 (1980). These three concerns guide us as we review Gomez' allegations of error in light of the harmless error analysis required by Rule 11(h). See, e.g., United States v. Barry, 895 F.2d 702, 704 (10th Cir.) (court need not vacate appellant's conviction and sentence unless substantial rights affected), cert. denied, --- U.S. ----, 110 S.Ct. 3222, 110 L.Ed.2d 669 (1990); United States v. Vance, 868 F.2d 1167, 1172 (10th Cir.1989) (when record does not show that court's failure to inform defendant of possible restitution affected his decision to plead guilty, error is harmless).

First, Gomez argues that the district court failed to advise him fully of the nature of the charge, as Rule 11(c)(1) requires. In Stinson v. Turner, 473 F.2d 913, 916 (10th Cir.1973), this court held a district court may satisfy Rule 11 and the Constitution by explaining the nature of the charge in plain terms. The advisory committee's notes to the 1974 amendment further explain that "[t]he method by which the defendant's understanding of the nature of the charge is determined may vary from case to case, depending on the complexity of the circumstances and the particular defendant." Fed.R.Crim.P. 11 advisory committee's notes.

Based on these standards, we are certain that Gomez understood the nature of the charge. In his colloquy with the district court, Gomez admitted he had discussed the charges with his attorney and understood them. He stated he knew he had the marijuana and that he was going to distribute it. The written plea agreement Gomez signed also stated that he desired to plead guilty to possession with intent to distribute more than fifty kilograms of marijuana. There is no more about the charge that Gomez need understand. Any error, which we fail to perceive, would be harmless under Rule 11(h).

Second, Gomez complains the court did not explain his right to a jury trial as Rule 11(c)(3) requires. Gomez insists that Rule 11 requires the judge to inform him that his fifth amendment rights include the right to assistance of counsel, to confront and cross-examine witnesses, and to be free from compelled self-incrimination. However, in United States v. Williamson, 806 F.2d 216, 222 (10th Cir.1986), we held a district court's failure to explicate the components of a jury trial does not violate the requirements of Rule 11. ³ Accord United States v. Stead, 746 F.2d 355, 357 (6th Cir.1984), cert. denied, 470 U.S. 1030, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985). The inquiry is not whether the rights inherent in a jury trial were enumerated, but rather whether the record affirmatively shows "a voluntary and intelligent plea." Stinson, 473 F.2d at 915-16. The failure to advise a criminal defendant of his right to confront and cross-examine witnesses is harmless error when the guilty plea is voluntary and the defendant understands the nature of the charges against him. Stead, 746 F.2d at 357.

We are convinced Gomez entered the plea voluntarily and knowingly. Gomez responded affirmatively when the court asked him whether his attorney had obtained his consent and authority to negotiate the plea agreement on his behalf. He also stated no one had threatened him or coerced him to plead guilty. Gomez further testified he entered the plea of guilty voluntarily and willingly. There is no evidence in the record, nor does Gomez allege, that the defendant was under the influence of drugs or alcohol at any stage of the guilty plea. We hold that Gomez entered his plea voluntarily and knowingly. Thus, the district court's failure to inform Gomez of his right to confront and cross-examine witnesses is harmless error. Also, there was no prejudice in the court's failure to advise Gomez he had a right to counsel because Gomez already was represented by counsel. Finally, because Gomez voluntarily waived his right to be free from compelled self-incrimination before responding at the pleading hearing, the court need not further advise him of this right.

Third, Gomez contends he was not advised his responses in court could be used against him in a prosecution for perjury, as Rule 11(c)(5) requires. We find no merit in this contention. In United States v. Pinto, 838 F.2d 1566, 1569 (11th Cir.1988), the Eleventh Circuit held a court's failure to so advise is an insufficient basis to attack a plea absent a threat of prosecution for perjury or some other showing of prejudice. See also United States v. Law, 633 F.2d 1156, 1157 (5th Cir.), cert. denied, 451 U.S. 992, 101 S.Ct. 2332, 68 L.Ed.2d 852 (1981). Here, Gomez does not face a threat of prosecution for perjury, and he demonstrates no other prejudice that might result. Based on Rule 11(h), we hold the court's failure to advise Gomez his responses could be used against him in a prosecution for perjury is harmless error.

Fourth, Gomez attaches the greatest significance to the court's failure to tell him the Sentencing Guidelines would "determine" the range of his sentence and this range is related directly to the quantity of marijuana involved. We cannot accept Gomez' argument that the district court's failure to inform him the Sentencing Guidelines would...