U.S. v. Martinez-Martinez

• Decision Date: 11 September 1995
• Docket Number: D,MARTINEZ-MARTINE,No. 94-1945,94-1945
• Citation: 69 F.3d 1215
• Parties: UNITED STATES of America, Appellee, v. Oliviaefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1215

69 F.3d 1215

UNITED STATES of America, Appellee, v. Olivia MARTINEZ-MARTINEZ, Defendant, Appellant.

No. 94-1945.

United States Court of Appeals First Circuit.

Heard Sept. 11, 1995.

Decided Nov. 21, 1995.

Zygmunt G. Slominski, Guaynabo, PR, by appointment of the Court, for appellant.

Jose A. Quiles Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, United States Attorney, and Epifanio Morales-Cruz, Assistant United States Attorney, were on brief, for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Circuit Judge.

Appellant Olivia Martinez-Martinez ("Martinez") seeks to vacate her conviction on a guilty plea for conspiracy to possess with intent to distribute a controlled substance and illegal use of a communication facility in furtherance of the conspiracy. The United States District Court for the District of Puerto Rico, Raymond L. Acosta, District Judge, accepted Martinez' plea and sentenced her to a prison term of eighty-seven months. In this appeal, Martinez challenges certain procedures at her change of plea hearing, the application of the criminal statutes to her case, and her sentence. Martinez also raises an ineffective-assistance-of-counsel claim. We affirm.

I. Factual Background and Prior Proceedings

The facts pertinent to this appeal are largely undisputed. Government agents arrested Martinez and her codefendants in a "reverse-sting" operation whereby the agents acted as sellers rather than purchasers in a cocaine transaction. Martinez was subsequently indicted under 21 U.S.C. Sec. 846 for conspiracy to possess with intent to distribute a controlled substance ("Count I") and 21 U.S.C. Sec. 843(b) for use of a communication facility (a telephone) in furtherance of the conspiracy ("Count II").

On May 3, 1994, the first day of trial, the parties negotiated a plea agreement whereby Martinez would plead guilty to an information charging the same violations as the original indictment, but for a smaller amount of cocaine. On the same day, Martinez completed and signed a Petition to Enter a Plea of Guilty ("plea petition"). Although the plea petition was written in both English and Spanish, Martinez completed her answers in Spanish. The very next day, the district court conducted a change of plea hearing. Martinez' attorney forgot to bring the plea petition to the hearing, and filed it later. Before the hearing, the parties filed the plea agreement as well as the Government's Version of the Facts; Martinez signed both English-written documents and, along with her attorney, initialled each page.

During the plea hearing, the district court addressed Martinez through an interpreter. The court simultaneously questioned Martinez and her codefendant (her common law husband) regarding their competence to plead, the constitutional rights waived in entering the pleas, the voluntariness of the pleas, the facts presented by the government, whether they had read and understood the charges, and if they had consulted their counsel about them.

The district court did not read the information or explain the elements of the charged crimes to Martinez and her codefendant. After the government presented its version of the evidence, both defendants agreed to the facts as stated and declined to offer their own versions.

The district court also explained the range of possible penalties provided by law as to each defendant. The parties presented an agreed-upon imprisonment recommendation and discussed at some length an offense-level decrease for acceptance of responsibility. Although the parties agreed to a two-level reduction pursuant to U.S.S.G. Sec. 3E1.1, the government stated it would not oppose an additional one-level reduction "for Bureau of Prisons purposes" if the term of confinement remained the same. ¹ The district court registered doubt as to the applicability of the extra reduction, noting that it is specifically awarded for timeliness in accepting responsibility. See U.S.S.G. Sec. 3E1.1(b). In response, the government's attorney expressed the opinion that "there might have been a reason for them not to notify me or come to a plea in a more timely fashion." The court then stated that with respect to the additional one-level reduction, "you can pretty well count on it, but you have to remind me at sentencing." Immediately after this exchange, the court secured the defendants' understanding that any sentencing agreement between the parties was not binding on the court but merely a recommendation. ² After finding that Martinez understood the nature of the charges against her and appreciated the consequences of pleading guilty, the court accepted her guilty plea to Counts I and II.

At Martinez' sentencing on August 9, 1994, the issue of awarding a three-level decrease for acceptance of responsibility was discussed again at some length. Martinez' attorney reminded the court of "the possibility of entertaining the reduction of one [additional level]" but acknowledged that "[a]ccording to the U.S. Attorney, this would be left to the sound discretion of this court." Despite the government's reaffirmation of its acquiescence, the court declined to award the third one-level reduction and indicated that upon further reflection, it found no reason to do so. ³ The court sentenced Martinez to eighty- seven months of imprisonment for Count I, and forty-eight months for Count II, to be served concurrently, based on a total offense level of twenty-eight. This appeal followed.

II. Discussion

On appeal, Martinez argues that: (1) this court should vacate her guilty plea because of defects in the plea proceedings pursuant to Fed.R.Crim.P. 11; (2) the criminal statutes under which she was convicted were unconstitutionally vague as applied; (3) the district court erred in not awarding her a third reduction point for acceptance of responsibility and in failing to depart downwards from the sentencing guidelines; and (4) she was deprived of the effective assistance of counsel.

A. Rule 11 Plea Proceedings

Martinez asks this court to vacate her guilty plea although she never moved to withdraw it in the lower court. While we ordinarily deem waived an issue not raised before the district court, we will determine Rule 11 compliance for the first time on appeal if the record is sufficiently developed. United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir.1991). ⁴ If additional facts must be found, however, a defendant cannot seek relief on direct appeal, but must collaterally attack the Rule 11 proceedings under 28 U.S.C. Sec. 2255. Parra-Ibanez, 936 F.2d at 593; see Fed.R.Crim.P. 32(e). Here, Martinez challenges the sufficiency of the court's inquiry and instruction during the plea proceedings. The accumulated record before this court, which includes the change of plea hearing transcript, the plea agreement and other formal filings, is sufficiently developed to allow direct review of the Rule 11 issues Martinez raises.

The extent of the burden Martinez bears in her direct appeal from a guilty plea is somewhat cloudy. In Parra-Ibanez, it appeared that a challenge to a guilty plea for the first time on appeal was subject to Rule 11(h)'s "harmless error" rule, i.e., any defect must be disregarded if it does not affect substantial rights. 936 F.2d at 598 & n. 24; Fed.R.Crim.P. 11(h). While the harmless error rule excuses minor and technical violations, it is not intended effectively to nullify Rule 11's express mandates or safeguards. See United States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir.1995) (citing United States v. Medina-Silverio, 30 F.3d 1, 4 (1st Cir.1994)); Fed.R.Crim.P. 11(h) advisory committee's note to 1983 amendment.

Subsequent to Parra-Ibanez, this Circuit appears to have imposed an additional burden on the direct appellant who failed to challenge the guilty plea in district court: to establish that the Rule 11 violation amounted to "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." United States v. Japa, 994 F.2d 899, 902 (1st Cir.1993); see also United States v. Ferguson, 60 F.3d 1, 2 (1st Cir.1995) (citing Japa ); United States v. Lopez-Pineda, 55 F.3d 693, 697 (1st Cir.) (citing Japa ), cert. denied, --- U.S. ----, 116 S.Ct. 259, --- L.Ed.2d ---- (1995); United States v. Ruiz-del Valle, 8 F.3d 98, 103-104 (1st Cir.1993) (citing Japa ); United States v. Baker, 790 F.2d 1437 (9th Cir.1986). Whether this higher standard should apply in a direct appeal case, or whether it should operate only in collateral attacks upon guilty pleas under 28 U.S.C Sec. 2255, is not without difficulty. See Fed.R.Crim.P. 11(h) advisory committee's note to 1983 amendment (noting applicability of higher standard to Sec. 2255 cases (citing United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979))); Fed.R.Crim.P. 32(d) [now 32(e) ] advisory committee's note to 1983 amendments (same); United States v. Cross, 57 F.3d 588, 590 (7th Cir.1995) (reviewing Rule 11 complaints in direct appeal case for plain error and finding such complaints subject to harmless error analysis), cert. denied, --- U.S. ----, 116 S.Ct. 406, --- L.Ed.2d ---- (1995); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1370 n. 2 (9th Cir.1988) (noting that burden in guilty plea challenge is apparently greater in collateral attacks than on direct appeal).

Having noted the somewhat uncertain status in this Circuit as to the burden a direct appellant must bear when challenging a guilty plea for the first time on appeal, a majority of the panel agrees that this case warrants affirmance under either standard. One panel member believes the error here is not harmless, but would apply the higher standard of review and find that Martinez is unable to satisfy that standard. Because the panel, as a whole, finds that Martinez' Rule 11 challenge fails,...