U.S. v. Portillo

• Decision Date: 23 March 1994
• Docket Number: No. 93-8285,93-8285
• Citation: 18 F.3d 290
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas Arthur PORTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 290

18 F.3d 290

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas Arthur PORTILLO, Defendant-Appellant.

No. 93-8285.

United States Court of Appeals,

Fifth Circuit.

March 23, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied April

19, 1994.

Philip J. Lynch, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, R. Clark Adams, Asst. Federal Public Defender, San Antonio, TX, for defendant-appellant.

Michael Hardy, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JONES and DeMOSS, Circuit Judges, and SCHWARTZ ¹, District Judge.

DeMOSS, Circuit Judge:

Appellant Portillo was indicted for (1) armed robbery of an automobile, in violation of 18 U.S.C. Sec. 2119; and (2) use of a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). Portillo filed a motion to dismiss the indictment or, alternatively, to compel the government to elect between the two counts, arguing that sentencing him for both charges would violate the Double Jeopardy Clause. The district court denied Portillo's motion, concluding that Congress intended to cumulatively punish offenders of both statutes.

Portillo unconditionally pleaded guilty to carjacking. However, his guilty plea to the gun charge was conditional:

2. The Defendant agrees to plead guilty conditionally under Fed.R.Crim.P. 11(a)(2) to Count Two of the instant indictment (using a firearm during violent crime). Specifically, the Defendant reserves the right to withdraw his guilty plea on this count only if, upon appellate review sought by either party, he prevails on his legal argument that he cannot be convicted and sentenced on Count Two, in addition to being convicted and sentenced on Count One.

His plea agreement also contained a waiver-of-appeal provision:

13. Except as otherwise provided, the Defendant hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. Sec. 3742, and the Defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. Sec. 2255. The Defendant, however, reserves the right to appeal the following: (a) issues specified in Paragraph 2, (b) any punishment imposed in excess of a statutory maximum, and (c) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court.

Portillo's Presentence Report ("PSR") assessed two criminal history points for his commitment as a 12-year-old to the Texas Youth Commission for arson and an additional two points because Portillo was on "parole" from the Youth Commission at the time he committed the federal offenses. Portillo objected to the report, contending that because the juvenile commitment did not involve an adjudication of guilt, it was not a "sentence" as that term is defined in the guidelines. The district court overruled the objection and adopted the PSR's calculation. The district court sentenced Portillo to consecutive terms of imprisonment on the carjacking charge and the gun charge.

Portillo appeals his sentence, arguing that cumulatively punishing him for carjacking and carrying a gun "during and in relation to any crime of violence" violates double jeopardy. Portillo's double jeopardy argument has been foreclosed by this court's opinion in United States v. Singleton, wherein the court held that double jeopardy was not offended by cumulative punishments under both the carjacking statute and the gun statute:

"We are satisfied, however, that Congress has made a sufficiently clear indication of its intent to impose cumulative punishments for violations of Sec. 924(c) and all crimes of violence, including 'carjacking', to satisfy the requirements of the Double Jeopardy Clause."

16 F.3d 1419, 1429 (5th Cir.1994). Portillo's first point of error is therefore denied.

Portillo also contends that the district court erroneously considered his juvenile commitment in calculating his criminal history score. The government asserts that Portillo has waived the right to appeal his sentence on this ground, relying on the waiver-of-appeal provision of the plea agreement. Portillo responds that the district court did not specifically admonish him concerning the waiver-of-appeal provision and that the waiver was uninformed and thus, invalid.

At the beginning of Portillo's Rule 11 hearing, the court gave Portillo an opportunity to read over the plea agreement and to have Portillo's attorney, Mr. Adams, explain it to him. The agreement itself, which Portillo signed--thus representing that he "understood and agreed to [it] in every respect"--is a three-page letter, consisting of 15 consecutively numbered paragraphs. After Mr. Adams told the court that his client was ready to proceed, the following colloquy took place:

THE COURT: OKAY, MR. PORTILLO, HAVE YOU HAD A CHANCE TO GO OVER THAT DOCUMENT?

PORTILLO: YES, SIR.

THE COURT: COMPLETELY? I MEAN, THIS TELLS ME, WHAT AGREEMENT HAS BEEN WORKED OUT IN YOUR CASE, AND HOW EVERYTHING IS GOING TO PROCEED. NOW, IS THIS DOCUMENT ACCURATE? IS THIS WHAT'S GOING TO HAPPEN IN THIS CASE? IS THIS YOUR UNDERSTANDING OF WHAT'S GOING TO HAPPEN IN YOUR CASE?

PORTILLO: YES, SIR.

THE COURT: OKAY. MR. ADAMS, ARE YOU FULLY SATISFIED THAT HIS DOCUMENT SETS OUT THE AGREEMENT THAT'S BEEN WORKED OUT, BY YOU, ON BEHALF OF MR. PORTILLO, WITH THE GOVERNMENT?

MR. ADAMS: YES, YOUR HONOR.

The court proceeded to admonish Portillo concerning the rights he...