U.S. v. Pena

• Decision Date: 09 January 2003
• Docket Number: No. 01-10069.,01-10069.
• Citation: 314 F.3d 1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victoriano DeJesus PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 1152

UNITED STATES of America, Plaintiff-Appellee, v. Victoriano DeJesus PENA, Defendant-Appellant.

No. 01-10069.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2002.

Filed January 9, 2003.

COPYRIGHT MATERIAL OMITTED

Frances A. Forsman, Federal Public Defender, Las Vegas, NV, for the defendant-appellant.

Nancy Davis, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CR 00-0085 KJD.

Before: TASHIMA, THOMAS, and PAEZ, Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

Victoriano DeJesus Pena appeals his conviction and the sentence imposed following his guilty plea to one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Pena challenges the validity of his guilty plea, contending that the district court failed to comply with Federal Rule of Criminal Procedure 11. We agree with Pena that the plea proceeding failed to comply with Rule 11 and therefore reverse his conviction. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.¹

BACKGROUND

Pena was indicted in a superseding indictment on three counts of distribution of a controlled substance, one count of conspiracy to distribute a controlled substance, and two counts of possession with intent to distribute a controlled substance. Pena entered into a plea agreement, pursuant to which he agreed to plead guilty to count five of the superseding indictment, possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).

At the change of plea hearing, the district court asked Pena's counsel whether Pena understood the plea agreement and whether Pena waived the reading of the indictment. The court then inquired of Pena, presumably through the Spanish interpreter, whether he had read the plea agreement and discussed it with his lawyer. The court then had the prosecutor summarize the plea agreement, after which it asked Pena whether the summary corresponded with his understanding of the agreement. The court explained the possible sentence and fine, the procedures regarding the Presentence Report, the court's lack of discretion under the sentencing guidelines, and the possible imposition of costs and penalties. The court asked Pena how he pled and whether he was induced to plead guilty by promises or threats.

The court explained the rights Pena was waiving by pleading guilty—the rights to a jury trial, to cross-examine witnesses and to bring witnesses, and to remain silent. The court then asked Pena's counsel whether he, the attorney, understood and agreed with the statement of the elements as set forth in the plea agreement. Finally, before accepting the plea, the court asked Pena whether he agreed with the facts set forth in the plea agreement in support of the guilty plea, whether the facts were accurate, and whether he sold cocaine to the officer in question. The court sentenced Pena to 274 months of imprisonment. Pena filed a timely notice of appeal.

STANDARD OF REVIEW

The adequacy of a Rule 11 plea colloquy is subject to de novo review. United States v. Minore, 292 F.3d 1109, 1115 (9th Cir.2002). Because Pena did not object below to the Rule 11 colloquy, his conviction may be reversed for Rule 11 error only if the district court committed plain error. United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); Minore, 292 F.3d at 1117. "There must be an `error' that is `plain' and that `affects substantial rights.'" Minore, 292 F.3d at 1117 (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If these requirements are met, we may exercise our discretion to correct the error only if the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).

DISCUSSION

Federal Rule of Criminal Procedure 11

obliges the trial court to engage the defendant in a colloquy at the time the plea is entered for the purpose of establishing a complete record of the constitutionally-required determinations that the defendant is acting voluntarily, with an understanding of the charges which have been leveled at him, and upon a factual basis which supports his conviction.

United States v. Jimenez-Dominguez, 296 F.3d 863, 866(9th Cir.2002). Rule 11 requires the court to "address the defendant personally in open court and inform [him] of, and determine that the defendant understands... the nature of the charge to which the plea is offered." Fed.R.Crim.P 11(c)(1). "A statement by the defendant and his attorney that they discussed the nature of the charge is ... insufficient to satisfy Rule 11(c), because vague references to discussion of `the charges' and `the nature of the charges' does not provide a complete record showing compliance with Rule 11(c)." United States v. Portillo-Cano, 192 F.3d 1246, 1251(9th Cir.1999) (quoting United States v. Smith, 60 F.3d 595, 598 (9th Cir.1995) (internal quotation marks omitted)).

The plea colloquy failed to comply with Rule 11 because the district court never explained to Pena the nature of the charges against him. Merely asking Pena whether he had read the plea agreement and asking his attorney whether the attorney, not Pena, understood and agreed with the elements of the offense is insufficient. See id. (stating that assurances that at some point the defendant and his attorney had discussed the nature of the charge "cannot cure the judge's failure to do so in open court"); cf. United States v. Kennell, 15 F.3d 134, 137 (9th Cir.1994) (stating that "courtroom recitals that the defendant has read the agreement simply do not take the place of the judge's telling the defendant what it means to enter" a guilty plea under Rule 11(e)(1)(B)). Defense counsel did state that Pena waived the reading of the indictment; however, a "waiver of the reading of the indictment does not excuse the district court's obligation to explain the nature of the charges against [the defendant]." United States v. Odedo, 154 F.3d 937, 940 (9th Cir.1998), abrogated on other grounds by Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90.²

Moreover, even though the court asked Pena whether the prosecutor's summary of the plea agreement "correspond[ed] with" Pena's understanding of the agreement, the prosecutor's only reference to the offense was to state that "[t]he defendant agrees to plead guilty to Count Five of the indictment, possession with intent to distribute a controlled substance, in violation of [21 U.S.C. § 841]." She then went on to discuss sentencing issues; she did not mention the elements of the offense or the facts that supported a guilty plea. Merely naming the charge against Pena is "`inadequate [because it] did not inform the defendant of the nature (as opposed to the formal legal description) of the charges against him.'" United States v. Longoria, 113 F.3d 975, 977 (9th Cir.1997) (quoting United States v. Bruce, 976 F.2d 552, 560 (9th Cir.1992)), rev'd on other grounds by Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90.

The district court's only reference to the charge against Pena was at the beginning of the plea hearing, when he informed Pena that he was entering a guilty plea to possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841. This "cursory recitation of the charge in no way informed [Pena] of the `nature' of the crime ... to which he would plead guilty." Bruce, 976 F.2d at 559. "A trial judge fails to satisfy his obligation under Rule 11 when, as here, he does not fully inform the defendant of the meaning and application `of legal argot and other legal concepts that are esoteric to an accused....'" Id. at 560(quoting United States v. Coronado, 554 F.2d 166, 172 (5th Cir.1977)). "This is not a case in which the district judge merely failed to utter verbatim some magical words. The required advisement was not given in any form." United States v. Graibe, 946 F.2d 1428, 1434 (9th Cir.1991). The plea colloquy therefore was deficient.

The government responds that the charge against Pena was outlined in the plea agreement. However, we rejected this reasoning in Smith. In Smith, as here, the provision of the plea agreement describing and explaining the crime "was not recited or even referred to in the plea proceeding." 60 F.3d at 599. We rejected the government's attempt to rely on the plea agreement to explain the nature of the charge, stating that, "[i]n the end, the government's argument is reduced to the fact that, at some point outside of the plea proceeding, [the defendant] was probably informed of the charge." Id. As we reasoned in Smith, the reason that Rule 11 requires the judge to address the defendant in open court is

to create a record complete on its face, to forestall later attacks on the plea. Even if we assume (without deciding) that the judge may delegate to defense counsel the responsibility to explain the charge, it is necessary that counsel inform the defendant in open court, so that in reviewing the record we may know what was said to the defendant.

Id. at 598 (citation omitted).

"Because there is a marked difference between being warned in open court by a district judge and reading some boiler-plate language during the frequently hurried and hectic moments before court is opened for the taking of pleas and arraignments, the reading of the plea agreement is no substitute for rigid observance of Rule 11." Kennell, 15 F.3d at 136. We accordingly reject the government's contention that the language in the plea agreement itself is sufficient to satisfy the requirements of Rule 11.

The plea colloquy did not satisfy the requirements of Rule 11. This is error, and it is plain. Moreover, "[t]he defendant's right to be informed of the...