U.S. v. Rivera, 88-2825

Decision Date17 July 1989
Docket NumberNo. 88-2825,88-2825
Citation879 F.2d 1247
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roberto RIVERA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Marjorie A. Meyers, Roland H. Dahlin, II, Federal Public Defender, Thomas G Lindenmuth, Asst. Federal Public Defender, Thomas S. Berg, Houston, Tex., for defendant-appellant.

Roberto Rivera, El Reno, Okl., (pro-se).

Frances H. Stacy, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Paula Offenhauser, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before KING, GARWOOD and DAVIS, Circuit Judges.

PER CURIAM:

The defendant-appellant pleaded guilty to transporting an undocumented alien within the United States and was sentenced to five years imprisonment--the maximum sentence under the statute. The defendant-appellant now appeals his sentence, alleging that the district court made an erroneous finding of fact under the Sentencing Guidelines and miscalculated his offense level under the Sentencing Guidelines. The defendant-appellant also urges that the indictment under which he was charged was fatally defective because it did not allege the requisite criminal intent and that he should be allowed to withdraw his guilty plea because the government breached its plea bargain agreement. Finding that the district court did not make an erroneous finding of fact, that the district court's miscalculation of the defendant's-appellant's offense level was harmless error, that the indictment alleged the necessary elements of the crime, and that the government did not breach its plea bargain agreement, we affirm the conviction.

I.

On February 4, 1988, United States border patrol agents arrested the codefendant of the defendant-appellant, Robert Rivera ("Rivera"), as the codefendant attempted to guide thirteen undocumented aliens around the border patrol checkpoint near Falfurrias, Texas. One of the aliens, Olga Lidia De Paz Mendoza ("De Paz Mendoza"), described and later identified the vehicle in which the aliens had been transported to the border patrol checkpoint. Rivera owned the vehicle, and De Paz Mendoza identified Rivera as the transporter.

Rivera was charged in a six-count indictment--one count of conspiracy to transport undocumented aliens within the United States, see 18 U.S.C. Sec. 371 (1966), and five counts of transporting undocumented aliens within the United States, see 8 U.S.C. Sec. 1324(a)(1)(B) (Supp.1989); 18 U.S.C. Sec. 2 (1969). Rivera agreed to plead guilty to count six of the indictment on the conditions that the government would dismiss the remaining counts and would "not ... pursue any charges against [Rivera] for intimidation of any of the Government witnesses...." Based on these conditions, Rivera pleaded guilty to count six on April 22, 1988, the district court ordered a presentence investigation, and the district court set sentencing for June 24, 1988. The presentence investigation report (the "presentence report" or the "report"), dated June 15, 1988, included information that Rivera had intimidated witnesses. The witness intimidation information included in the report was one of the reasons why Rivera attempted to withdraw his guilty plea at the sentencing. 1 On July 27, 1988, the district court denied Rivera's motion to withdraw his guilty plea and rescheduled Rivera's sentencing for August 4, 1988.

At the sentencing, Rivera made a motion for the district court to reconsider his motion to withdraw his guilty plea, and the district court denied the motion and sentenced Rivera. Refering to the Sentencing Guidelines ("Guidelines"), the district court found that Rivera had committed a crime constituting an offense level of nine. Concerning adjustments of that offense level, Rivera objected to the presentence report on the basis that it stated that Rivera had threatened to kill a material witness and that, therefore, Rivera's offense level should be upgraded two points for obstruction of justice. The district court, however, found that Rivera had obstructed justice and raised Rivera's offense level two points. The district court also raised Rivera's offense level two points because Rivera had prior convictions for smuggling aliens--bringing the offense level to thirteen. The district court further found that Rivera was not an organizer and that Rivera had accepted responsibility for his crime. Refering to this latter finding, the district court stated that Rivera's offense level should be adjusted downward by two points but failed to make the adjustment. If the district court had given Rivera credit for accepting responsibility, Rivera's offense level would have been reduced to eleven. Instead, the district court stated that Rivera's offense level was thirteen. The district court then determined that Rivera's criminal history--totaling eighteen points--fell into category VI. Finally, the district court departed from the sentencing guidelines on the basis of Rivera's extensive criminal history and sentenced Rivera to the maximum penalty allowed by statute--five years imprisonment. 2 Rivera filed a timely notice of appeal.

II.

On appeal, Rivera argues that (1) the indictment was fatally defective because it failed to allege the requisite criminal intent, (2) the government did not comply with its plea bargain agreement and, therefore, Rivera should be allowed to withdraw his guilty plea, and (3) the district court made an erroneous finding of fact under the Guidelines and miscalculated his offense level under the Guidelines. We address each of these arguments in turn.

A. Indictment

Count six of the indictment, to which Rivera pleaded guilty, is as follows:

Count Six

From on or about February 2, 1988, to on or about February 4, 1988, in the Southern District of Texas and within the jurisdiction of the Court, Defendants

ROBERTO RIVERA, MIGUEL ALFREDO ARROYO-RAMIREZ, and JOSE

RODRIGUEZ-CORONADO,

in reckless disregard of the fact that Jesus Nicolas Pixabaj-Chavez was an alien who had entered the United States in violation of law, did knowingly transport such alien in furtherance of such violation of law within the United States, that is, from near Brownsville, Texas, to near Falfurrias, Texas, by means of a motor vehicle.

[Violation: Title 8, United States Code, Section 1324(a)(1)(B), and Title 18, United States Code, Section 2]

The relevant statute to this appeal and one of the statutes on which count six was based states:

(a) Criminal Penalties

(1) Any person who--

(B) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

shall be fined in accordance with Title 18, or imprisoned not more than five years, or both, for each alien in respect to whom any violation of this paragraph occurs.

8 U.S.C. Sec. 1324(a)(1)(B). Rivera argues that count six of the indictment is fatally defective because the indictment charged Rivera with knowingly transporting an undocumented alien in furtherance of violation of the law instead of charging Rivera with willfully transporting an undocumented alien in furtherance of violation of the law. Thus, Rivera asserts that "willful" is an essential element of the crime and that, therefore, the omission of "willful" in the indictment renders the indictment fatally defective.

A defect in an indictment is jurisdictional, and such a defect is not waived by a guilty plea. 3 United States v. Morales-Rosales, 838 F.2d 1359, 1361-62 (5th Cir.1988). A criminal indictment "must be a 'plain, concise, and definite written statement of the essential facts constituting the offense charged.' " Id. at 1361 (emphasis in original) (quoting Fed.R.Crim.P. 7(c)(1)). "An [indictment] that fails to allege each material element of an offense fails to charge that offense." Id.

"The starting place for any determination of whether the charged conduct proscribed by such a statute is a reading of the language of the charging instrument and the statute itself." Id. The only state of mind explicitly mentioned in the statute is the requirement that the defendant know or be in reckless disregard of the fact that the alien is illegally in the country. An intent to further such violation of the law is implied in the language "transports ... in furtherance of such violation of law...." The indictment actually goes beyond the statutory language by using "knowingly transport." 4

Our recent decision in Morales-Rosales further assists our inquiry into the necessary elements that an indictment must allege to charge a person with the crime stated in section 1324(a)(1)(B). As Morales-Rosales states, "[t]he statute [section 1324(a)(1)(B) ] clearly states that an offense is committed when an individual (1) knows that the alien he transports has entered the United States in violation of the law and (2) transports the alien in order to further that violation." Id. In Morales-Rosales, we found that the criminal information charged the defendant with the first element of the offense but did not charge him with the second element of the offense--"that he acted willfully in furtherance of the alien's violation of the law." Id. Despite the use of the word "willfully" in Morales-Rosales, a close reading of that case and of United States v. Merkt, 764 F.2d 266 (5th Cir.1985), on which the Morales-Rosales court relies, indicates that only the statutory language "in furtherance of such violation of law" is required to be alleged in an indictment. Furthermore, in both Morales-Rosales and Merkt we have held that "willful transportation" is not a violation of section 1324(a)(1)(B). Rather, an essential element of section 1324(a)(1)(B) is the existence of "a direct and substantial relationship...

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