U.S. v. Reyes

• Citation: 300 F.3d 555
• Decision Date: 25 July 2002
• Docket Number: No. 01-50737.,01-50737.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro REYES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 555

300 F.3d 555

UNITED STATES of America, Plaintiff-Appellee, v. Pedro REYES, Defendant-Appellant.

No. 01-50737.

United States Court of Appeals, Fifth Circuit.

July 25, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Asst. U.S Atty., Diane D. Kirstein, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, San Antonio, TX, for Defendant-Appellant.

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

Before DAVIS, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The opinion reported at No. 01-50737, 2002 WL 1290864 (5th Cir. June 12, 2002), is withdrawn and the following opinion is substituted therefor.

Pedro Reyes ("Reyes") appeals from his convictions for importing marijuana and for possessing marijuana with intent to distribute on the grounds that his guilty plea was invalid because the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure. For the following reasons, we hereby vacate his convictions and sentence and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

Reyes was charged in December of 2000 by an indictment with one count of importing 50 kilograms or more of marijuana into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3), and one count of possessing with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In May of 2001, Reyes, then 75 years old, pled guilty to the indictment as charged. He did so without the benefit of a plea agreement. The court sentenced him to concurrent terms of 151 months of imprisonment and three years of supervised release, and ordered him to pay a $200 special assessment.

According to the "factual basis" that the court elicited from the prosecutor, Reyes was stopped at a border checkpoint while driving a small truck with 110 bundles of marijuana weighing 77.9 kilograms concealed in a false compartment located in the bed of the truck. He was subsequently arrested and advised of his constitutional rights, which he acknowledged and waived. Reyes denied knowledge of the marijuana. He claimed that he traveled to Mexico to visit his girlfriend and that he borrowed the truck from his friend.

At the rearraignment, several defendants pled simultaneously. Reyes was represented by the Federal Public Defender (FPD) in the district court, and his counsel told the court that Reyes "assures me that he had no knowledge of the marijuana" hidden in the truck and "will not be accepting responsibility as to his knowledge," but that "we would like to plead [Reyes] guilty if we could." Throughout the proceeding, Reyes was equivocal as to his desire to plead guilty. He attempted to plead guilty while still denying that he knew there was marijuana in the truck. After the district court advised Reyes that he could not plead guilty without admitting that he knew the marijuana was in the truck, Reyes finally said, "I plead guilty with knowledge." After addressing other persons in the courtroom, the district court again told Reyes, "If you plead guilty, the charge is that you knew that it was there." Reyes responded that even though he would plead guilty, he wanted to send a letter to the judge explaining the facts.¹ Reyes also denied some details of the factual basis and hesitated and laughed before admitting that the rest of it was true. Later, Reyes said that he wanted to plead not guilty because he "never had it in my possession," but then changed his plea back to guilty. The court said it would hear from Reyes again after hearing from the other defendants. When asked for the last time how he wanted to plead, Reyes said "I pled guilty already, Your Honor." The court then accepted the plea.

DISCUSSION

Through the FPD,² Reyes appeals his convictions on grounds that his guilty plea was invalid because the district court did not adequately comply with Federal Rule of Criminal Procedure 11. Reyes asserts three violations of Rule 11(c)(1). First, he contends that the district court failed to advise him fully as to the nature of the charge. Second, he asserts that the court failed to advise him adequately of the effects of a term of supervised release. Finally, he argues that the court failed to advise him that it was required to consider the sentencing guidelines and could depart from the guidelines only in some circumstances.

I.

Because a guilty plea involves the waiver of several constitutional rights, it must be made intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Rule 11 ensures that a guilty plea is knowing and voluntary by requiring the district court to follow certain procedures before accepting such a plea.³ Reyes failed to raise a Rule 11 challenge in the district court. As such, we apply a plain error-analysis. United States v. Vonn, ___ U.S. ___, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Under this analysis, Reyes has the burden to show (1) there is an error, (2) that is clear and obvious, and (3) that affects his substantial rights. United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001). "If these factors are established, the decision to correct the forfeited error still lies within our sound discretion, which we will not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

To evaluate the effect of any error on substantial rights, we determine whether "the district court's flawed compliance with ... Rule 11 ... may reasonably be viewed as having been a material factor affecting [the defendant]'s decision to plead guilty." United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993). "[W]e focus on whether the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty." Id. (citation and internal quotations omitted). In making this determination, we may consult the whole record on appeal. Vonn, ___ U.S. at ___, 122 S.Ct. at 1046; Johnson, 1 F.3d at 302.

II.

Reyes contends that the district court failed to explain the nature of the charges because the court did not expressly advise him that the charges against him involved more than 50 kilograms of marijuana. "Rule 11's requirement that defendants understand the `nature of the charge' against them refers to the elements of the offense." United States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001). "Neither Rule 11 nor the case law specifies the minimum that the district court must do to inform the defendant ... of the nature of the charge." United States v. Reyna, 130 F.3d 104, 110 (5th Cir.1997) (internal quotation and citation omitted). Rather, "the court must have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge." Id.

The elements of possession of marijuana with the intent to distribute it under § 841(a)(1) are that "the defendant had (1) knowing (2) possession of the illicit substance (3) with intent to distribute it." United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir.1989). The elements of the crime of importation under § 952(a) are only that the defendant "played a role in bringing the mari[j]uana into the United States from a foreign country." Id. Under Apprendi v. New Jersey, "[o]ther 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." 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court has held that if the government seeks enhanced penalties for a federal drug trafficking offense based on the amount of drugs, the specific drug quantity is an element of the crime, i.e., "the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." United States v. Virgen-Moreno, 265 F.3d 276, 297 (5th Cir.2001) (citation and internal quotations omitted).

The court told Reyes that he was "charged with two charges. One is importing marijuana and the other one is possessing it with intent to distribute it or give it or sell it to someone else." The court asked Reyes if he understood both charges, and Reyes said that he did. Reyes showed he was aware of the element of bringing the marijuana into the United States. The court explained what was meant by intent to distribute. The court specifically discussed with Reyes the scienter element of both crimes and explained in detail that Reyes could not plead guilty without admitting that he knew he was carrying marijuana.

In the context of discussing the maximum possible penalties, the court explained that more than 50 kilograms of marijuana was involved.⁴ When the court asked Reyes whether he understood the punishment that he could receive, Reyes did not respond in the affirmative; instead he stated, "Your Honor, you will have to repeat the proposed sentenced [sic] upon me by talking a little bit louder." The district court did not mention the drug quantity again when repeating the possible penalties.

Even if the district court erred in failing to give a clearer explanation of the drug quantity involved in this case, this did not affect Reyes's substantial rights. Although the indictment was not read, there is evidence indicating that Reyes understood the nature of the charges. Cf. Virgen-Moreno, 265 F.3d at 297 (reviewing cases and observing that "in every case where we have found the failure to explain the nature of the charge to be harmless, there has been evidence, other than recitation of the factual basis, indicating that the defendant understood the nature of the charge"). The indictment charged the correct drug quantity. Reyes acknowledged that he had seen a copy of the charges against him, that somebody had read the charges...