U.S. v. Ramirez-Benitez

• Decision Date: 04 June 2002
• Docket Number: No. 00-1497.,00-1497.
• Citation: 292 F.3d 22
• Parties: UNITED STATES, Appellee, v. Ramon RAMIREZ-BENITEZ, a/k/a Sealed Defendant 12, a/k/a El Viejo, a/k/a Moncho. Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

292 F.3d 22

UNITED STATES, Appellee, v. Ramon RAMIREZ-BENITEZ, a/k/a Sealed Defendant 12, a/k/a El Viejo, a/k/a Moncho. Defendant, Appellant.

No. 00-1497.

United States Court of Appeals, First Circuit.

Heard January 11, 2002.

Decided June 4, 2002.

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Zygmunt G. Slominski for appellant.

Thomas F. Klumper, Assistant United States Attorney, Criminal Division, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, were on brief for appellee.

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

LEVIN H. CAMPBELL, Senior Circuit Judge.

In this appeal from a sentence following a guilty plea, Ramon Ramirez-Benitez ("Ramirez-Benitez") seeks to withdraw his plea. He contends the district court provided him with inadequate advice. He also alleges a conflict of interest on the part of his counsel and ineffective assistance of counsel. Affirming, we reject the first two claims but do not reach Ramirez-Benitez's third claim for ineffective assistance of counsel.

I. Background

In December 1998, Ramirez-Benitez, along with thirty co-conspirators, was charged in an eight count indictment with participating in a conspiracy to distribute multi-kilograms of heroin in Puerto Rico. The district court appointed attorney Edgardo Rivera-Rivera ("Rivera") to represent Ramirez-Benitez.

Just prior to the scheduled trial, Ramirez-Benitez negotiated a written plea agreement with the United States Attorney. In the agreement, Ramirez-Benitez agreed to plead guilty to a single count of the indictment, namely Count I, alleging his participation in a conspiracy to possess and distribute at least one (1) kilogram of heroin in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The plea agreement stated at the outset that "[t]he statutory penalty as to Count I of the indictment is a term of imprisonment of not less than TEN (10) years and not more than life...." The agreement went on to state that the government and Ramirez-Benitez stipulated that he was responsible for the distribution of at least three kilograms but less than ten kilograms of heroin resulting in a base level offense of 34. The parties further stipulated that Ramirez-Benitez would receive a three level downward adjustment for acceptance of responsibility and a further "two (2) level reduction if the defendant meets the criteria of the `safety valve' set forth in U.S.S.G. § 5C1.2."¹ Based on a total offense level of 29, the imprisonment range was calculated at 87 to 108 months. The agreement went on to say, however, that Ramirez-Benitez "understands that the Court is not bound by the provisions of this plea, including stipulations and calculations." Further, the government reserved the right to present sentencing facts or factors material to sentencing and to bring its version of the facts to the attention of the Probation Office in connection with its sentence report. Included within the plea agreement was a Statement of Facts signed by Ramirez-Benitez confirming that the facts presented were "accurate in every respect." The plea agreement was signed for Ramirez-Benitez, both by himself and by attorney Jorge A. Fernandez ("Fernandez"), who purported to sign on behalf of Rivera, Ramirez-Benitez's court-appointed attorney.

On November 8, 1999, Ramirez-Benitez presented his change of plea to the district court for its acceptance. At this time a co-defendant, Cecilio Ceballos, also sought acceptance of his own guilty plea for his involvement in the same conspiracy. Ceballos was represented by Attorney Fernandez, who had been appointed by the court to represent him. Fernandez was the same attorney who signed Ramirez-Benitez's plea agreement for Rivera, his appointed attorney. When Ramirez-Benitez appeared before the district judge for his change of plea hearing, Fernandez rose to represent him. Fernandez explained to the court that Rivera, his law partner, was too ill to attend the hearing and had asked Fernandez to stand in for purposes of the change of plea only. The court immediately advised Ramirez-Benitez and Fernandez of the existence of a potential conflict of interest and offered to appoint another attorney, see infra, for more details of the colloquy. The court recessed to provide Ramirez-Benitez with an opportunity to discuss the situation with Fernandez. After a brief discussion, Ramirez-Benitez advised the court that he would continue with the change of plea with Fernandez as his counsel. At the conclusion of the hearing his change of plea was accepted by the court.

At the later sentencing hearing, Ramirez-Benitez was represented by his court-appointed attorney Rivera. Rivera presented no corrections nor objections to the pre-sentence report. When the court questioned the parties regarding the applicability of the "safety valve," the Assistant U.S. Attorney explained that the safety valve was not available to Ramirez-Benitez on the facts of this case. Rivera commented that he agreed "with Brother Counsel for the Government that it [did] not apply; however, when my client executed the plea agreement in this case, there was some provision inserted as to the possibility of the application of the safety valve provision. However, I have explained to my client that he does not conform to the criteria of the safety valve."

Ramirez-Benitez's ineligibility for the two level "safety-valve" reduction stemmed from his alleged use of a firearm in the offense. The use of a firearm had been implied in Count I of the indictment, although not mentioned in the plea agreement. Specifically, Ramirez-Benitez was alleged in Count I to have told a co-defendant that "he had the `tools' to `fix that problem,' namely a weapon to cause the debtor's death." Use of a firearm was also asserted in the pre-sentence report. Ramirez-Benitez did not object to the report. The sentencing court did not ask the government to describe the facts upon which this allegation was based nor did Rivera ever complain that a factual basis did not exist. Without the advantage of the safety valve, Ramirez-Benitez was subject to the mandatory minimum of ten years, and that is the sentence he received.

Ramirez-Benitez objected to the sentence at the time it was announced. He said he had pled guilty pursuant to a plea agreement with a stipulated sentencing range of only 87 to 108 months. He said that he was unaware that the specified range was dependent upon his qualification for the safety valve. "I just want to say that I came prepared in that an arrangement was made in English. And I was talked about a sentence which I accepted, but I was never talked about [sic] ... a safety valve."

II. Discussion

A. The Rule 11 Colloquy

Ramirez-Benitez contends that the district court failed properly to advise him of the nature and consequences of his guilty plea. He argues this error requires us to vacate his plea. Ramirez-Benitez never raised these issues below, hence our review is governed by the plain error standard. United States v. Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir.2001); United States v. Gandia-Maysonet, 227 F.3d 1, 5 (1st Cir.2000). The defendant's burden under the plain error standard is a heavy one. Plain error requires not only an error affecting substantial rights but also a finding by the court that the error had seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.2000).

Ramirez-Benitez's first attack on his plea implicates one of Rule 11's core concerns, namely that the court properly instruct the defendant as to the nature of the charges against him. Gandia-Maysonet, 227 F.3d at 3. However, the district court's description of the offense charged was adequate for Ramirez-Benitez to have understood the elements of the offense. The district court read Count I of the indictment and asked whether Ramirez-Benitez understood the charges. The court also explained the indictment in lay terms and asked that Ramirez-Benitez describe his involvement.

In cases with charges lacking in complexity, simply reading the indictment to a defendant, as was done here, can satisfy Rule 11's requirements. See Fed. R.Crim.P. 11 advisory committee's notes to 1974 Amendments. This was such a case. The charge against Ramirez-Benitez was not complicated; it did not contain "esoteric terms unfamiliar to the lay mind." Mack v. United States, 635 F.2d 20, 25 (1st Cir.1980). The terms of the indictment alone sufficed to put Ramirez-Benitez on notice of the charge to which he was pleading guilty. Ramirez-Benitez admitted he understood the charge and the court found him competent to plead. Ramirez-Benitez also acknowledged his involvement in the conspiracy stating that he was a "distributor" of the heroin brought into Puerto Rico by a co-defendant. United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir.1995) (concluding defendant's admission that the allegations are true is sufficient evidence that he understood charge). As a corollary to this admission in court, the plea agreement included a statement of facts, endorsed by Ramirez-Benitez, outlining his conduct. We find no error, let alone plain error. United States v. Perez-Carrera, 243 F.3d 42, 43 n. 2 (1st Cir.2001).

Ramirez-Benitez also argues that, pursuant to Rule 11(f), the district court should have inquired into the applicability of the safety-valve provision before accepting his guilty plea. Rule 11(f) requires a district court to make "such inquiry as shall satisfy it that there is a factual basis for the plea." According to the Supreme Court, a district court judge "satisfies the requirements of Rule 11(f) when he determine[s] `that the conduct which the defendant admits constitutes the offense charged in the indictment or information....'" Libretti v. United States, 516 U.S. 29, 38, 116 S.Ct....