U.S. v. Gonzalez

• Decision Date: 19 July 2001
• Docket Number: No. 00-50406,00-50406
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN ADRIAN GONZALEZ, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 355

259 F.3d 355 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN ADRIAN GONZALEZ, Defendant - Appellant.

No. 00-50406

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

July 19, 2001

Joseph H. Gay, Jr., Asst. U.S. Atty., Angela S. Raba, Angela J. Moore, San Antonio, TX, for Plaintiff-Appellee.

John Aloysius Convery, Hasdorff & Convery, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas

Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON^*, District Judge.

EMILIO M. GARZA, Circuit Judge:

Juan Adrian Gonzalez ("Gonzalez") appeals his guilty-plea conviction and sentence for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm his conviction, but vacate his sentence and remand to the district court for resentencing.

Gonzalez, pursuant to a written plea agreement, pleaded guilty to conspiracy to possess with intent to distribute marijuana. The factual basis for the plea, to which Gonzalez admitted, reflected that he, along with Miguel Longoria and Juan Torres, agreed to deliver approximately 500 pounds of marijuana to DEA agents. As part of the plea agreement, Gonzalez waived "the right to appeal any sentence imposed within the maximum provided in the statute of conviction, whether on direct appeal to the Fifth Circuit or in a collateral proceeding." The waiver did not apply to claims of ineffective assistance of counsel or prosecutorial misconduct.

In the pre-sentencing report, the probation officer determined that Gonzalez was responsible for 777.01 kilograms of marijuana: 232.69 kilograms of marijuana seized by law enforcement agents on March 13, 1999, and 544.32 kilograms of marijuana discussed during negotiations with the agents. Based on the 777.01 kilograms of marijuana attributed to Gonzalez, the probation officer fixed his base offense level at 30. The probation officer recommended a two-level increase for Gonzalez's leadership role in the offense, and a three-level reduction for Gonzalez's acceptance of responsibility, resulting in a total offense level of 29. Gonzalez's criminal history category was II, which, at offense level 29, resulted in a guideline sentencing range of 97-121 months' imprisonment.

Gonzalez objected to the quantity of drugs attributed to him, specifically the inclusion of the 544.32 kilograms of marijuana, and to the proposed leadership adjustment. At sentencing, the district court overruled Gonzalez's drug-quantity and leadership role objections. The government filed a motion recommending a two-level reduction for Gonzalez's substantial assistance, pursuant to § 5K1.1, which the court approved. The court sentenced Gonzalez to 78 months' imprisonment and 5 years' supervised release. Gonzalez filed a timely notice of appeal.

On appeal, Gonzalez contends that he did not knowingly and voluntarily waive his right to appeal his sentence, rendering the waiver unenforceable. Because, according to Gonzalez, the waiver is unenforceable, he can now challenge the district court's enhancements for the drug quantity attributed to him and Gonzalez's leadership role in determining the appropriate sentencing guideline range. Additionally, Gonzalez maintains that even if we find his wavier of appeal valid, we should vacate his plea due to the district court's alleged violations of Federal Rule of Criminal Procedure 11.

A defendant may waive his statutory right to appeal as part of a valid plea agreement if the waiver is knowing and voluntary. United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). "It is up to the district court to insure that the defendant fully understands [his] right to appeal and the consequences of waiving that right." United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992). Gonzalez's signed plea agreement informed him of the right to appeal his sentence and that he would be waiving that right by pleading guilty, except under the circumstances enumerated.

Gonzalez avers that his waiver of appeal was not knowing and voluntary because of (1) his counsel's objection to the waiver during the plea colloquy; (2) the prosecutor's statement during the plea hearing that the district court routinely voided such waivers; and (3) the district court's statement at sentencing that he could appeal his sentence. First, Gonzalez's counsel expressed his reservation concerning the appeal-waiver provision to the extent that it would preclude an appeal of an upward departure from the sentencing guidelines. But at no time did his counsel object to the appeal-waiver provision on the basis that it waived Gonzalez's right to appeal the district court's determination of the applicable guideline range.

Second, although Gonzalez is correct that the prosecutor made the comment that "Judge Justice regularly strikes through this provision on the waiver of appeal," the magistrate judge who conducted the plea hearing clearly explained that the plea agreement was a contract between Gonzalez and the government requiring a meeting of the minds on all major elements. In response to the magistrate's explanation, defense counsel indicated that despite his concern that he would be rendering ineffective assistance of counsel by entering into a plea agreement that allowed no appeal of upward departures from the sentencing guidelines, Gonzalez still wanted the "bargain" offered by the government. Counsel then represented to the court that there was a meeting of the minds on the appeal-waiver provision, with the only issue being whether this court would enforce it. Moreover, after the appeal waiver discussion concluded, the district court again asked Gonzalez whether he understood that he was waiving his right to appeal his sentence. He answered, "Yes." Gonzalez also indicated that he had signed the plea agreement freely and voluntarily.

Third, at sentencing, the district court erroneously advised Gonzalez that he had the right to appeal his sentence. Nevertheless, any confusion at that time has no effect on the validity of the waiver. See Melancon, 972 F.2d at 568 (holding that the district court's misstatement at sentencing regarding the defendant's right to appeal had no effect on whether the waiver of right to appeal was voluntary and knowing). Accordingly, because the record shows that Gonzalez's waiver of appeal was informed and voluntary, we find that the waiver precludes review of the drug-quantity and role adjustment issues Gonzalez raises on appeal.

Gonzalez next contends that his plea should be vacated because the district court violated Federal Rule of Criminal Procedure 11.¹ He maintains that the district court failed to adequately explain the ramifications of the appeal-waiver provision and that "had the court ultimately advised [him] that his written plea agreement would bar him from appealing his sentence, he might not have been willing to go through with his plea." The record belies this contention. In light of the extensive discussion of the waiver at the time of Gonzalez's guilty plea, he was aware of the provision. Furthermore, even after the discussion of the waiver during the plea hearing, Gonzalez stated that he was aware that he was waiving his right to appeal his sentence as part of the plea agreement. Again, the record indicates that Gonzalez's waiver was informed and voluntary.

The government, "in the interest of candor," notes that the quantity of marijuana involved in the offense was not alleged in the indictment, and, therefore, Gonzalez's sentence of 78-months' imprisonment may violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Gonzalez did not raise the Apprendi issue.² We may raise an issue sua sponte "even though it is not assigned or specified," when "plain error is apparent." United States v. Pindea-Ortuno, 952 F.2d 98, 105 (5th Cir. 1992) (citing Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962) and United States v. Adams, 634 F.2d 830, 836 (5th Cir. Unit A January 1981)). Further, when the government, to its credit, calls our attention to an Apprendi issue, "fairness[,] as well as judicial economy[,] dictate that we address . . . th[e] issue," particularly when it would be "raised in a subsequent habeas proceeding." Id. We review an issue not raised below only for plain error, see id., which is defined as "(1) an error; (2) that is clear or plain; (3) that affects the defendant's substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Apprendi requires the government to allege drug quantity in the indictment, submit it to the jury, and prove it beyond a reasonable doubt when the government seeks a sentence pursuant to the 21 U.S.C. § 841(b) provisions triggered only by specified drug quantity ranges. United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000).

Gonzalez's indictment fails to allege a drug quantity. In light of that failure, § 841(b)(1)(D) sets forth the statutory maximum to which Gonzalez may be sentenced, which due to the absence of a prior felony drug conviction is 5 years (or 60 months). See United States v. Garcia, 242 F.3d 593, 599-600 (5th Cir. 2001) (§ 841(b)(1)(D) is the "default provision" for a drug charge involving marijuana). The maximum term of supervised release to which Gonzalez...