U.S. v. Suarez, 97-20756
Decision Date | 10 September 1998 |
Docket Number | No. 97-20756,97-20756 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis Enrique SUAREZ Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.
Scott D. Levy, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.
Factual Background
On February 26, 1997, a special agent received information from Customs Agent Deborah Knolte that Christina Crawford Watson, a citizen of Costa Rica, had been intercepted by inspectors at the Dallas/Fort Worth Airport with approximately two kilograms of cocaine taped to her body. Watson was arrested, waived her Miranda rights and agreed to assist agents in making a controlled delivery of the substance.
Under monitoring of an investigative team, Watson met with Luis Suarez in a motel room and Suarez took possession of the two kilograms of cocaine. Immediately thereafter, agents arrested Suarez and conducted a pat down of his body and found the two kilograms of cocaine minus a small amount of cocaine that he had given back to Ms. Watson. A search of Suarez's belongings revealed other paraphernalia that led investigators to believe that he was in possession of the cocaine with intent to distribute. The paraphernalia included: a pager with the motel's phone number on it and a Post-it note with Ms. Watson's room number on it. The investigative team also audio taped the telephone conversation between Ms. Watson and Mr. Suarez where the cocaine and the subsequent delivery of the cocaine were discussed.
Suarez was charged with possession of cocaine with intent to distribute, in violation of Title 21, U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). At the rearraignment the district court asked Mr. Suarez if the indictment had been read to him in Spanish. Suarez replied, "Yes, sir." The court then asked Suarez if he wanted the indictment to be re-read and Suarez responded, "Yes, sir." Then, the following colloquy occurred:
THE COURT: On March 26, 1997, the grand jury charged that about February 26, 1997, in the Houston Division of the Southern District of Texas, Luis Enrique Suarez did knowingly and intentionally possess with the intent to distribute a mixture containing a detectable amount of the Schedule 2 controlled substance cocaine in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(b) [sic] (2)[sic].
Mr. Suarez, how do you plead to the charge in the indictment?
The court then informed Mr. Suarez that he had a right to a trial by a jury; that the Government would have to establish the elements of the offense in order to convict him; that he had a right to confront and cross-examine adverse witnesses; and that he had a right against compelled self-incrimination. The district court informed Suarez that by pleading guilty he waived all these rights and asked him if he still wanted to plea guilty. Suarez replied, "Yes."
The district court also informed Mr. Suarez that he was "charged with possession of cocaine with the intention to distribute it" and that the The court then asked Suarez if he had "any questions about the elements of what [he was] charged with or the punishment?" and Suarez replied, "No, sir."
After going over the sentencing guidelines with the government and briefly hearing the evidence that the government was ready to present, the court asked Mr. Suarez if he agreed with the summary of the evidence and Mr. Suarez replied, "Yes, sir." The court then accepted Suarez's guilty plea as charged in the indictment.
Following the rearraignment, the Government filed a Motion to Clarify Entry of Guilty Plea. The Government indicated that Suarez had "never admitted to his guilt to the indicted charge" and requested that
At sentencing, the district court, through a Spanish interpreter, questioned Suarez regarding his guilty plea. The following colloquy occurred:
THE COURT: All right, Mr. Suarez, we discussed what you did in this case back in June, and somebody with the government has become concerned that you didn't admit that you did what you are charged with in this indictment. I'm going to try to clear that up.
Mr. Suarez, have you used cocaine?
Under oath, are you telling me that you had two kilograms, roughly, of cocaine with you in February of this year for you personal use? Were all two kilogram of that cocaine for your personal use?
The district court then heard Suarez's objections to the presentence report and imposed a sentence of 60 months imprisonment. This appeal followed.
Several federal constitutional rights are waived when a guilty plea is entered, thus it must be done intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Before accepting a guilty plea, the court must address the defendant in open court and determine that the defendant understands "the nature of the charge to which the plea is offered." FED.R.CRIM.P. 11(c).
Although Suarez did not raise a Rule 11 challenge in the district court, he may assert it on appeal. U.S. v. Reyna, 130 F.3d 104, 107, 107 n. 2 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1328, 140 L.Ed.2d 489 (1998) ( ); U.S. v. Henry, 113 F.3d 37, 40 (5th Cir.1997) ( ).
Under the harmless-error analysis, this Court must determine (1) whether the sentencing court in fact varied from the procedures required by Rule 11 and (2) if so, did such variance affect the substantial rights of the defendant. U.S. v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc). A substantial right has been violated if "the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty." Id. at 302.
It appears from the transcript that Mr. Suarez did not understand what he was being charged with and that the court violated Rule 11(c)(1) by accepting his guilt plea without ensuring that Mr. Suarez understood the nature of the charge. See U.S. v. Punch, 709 F.2d 889, 894 n. 7 (5th Cir.1983) ( ).
There are three elements to possession with the intent to distribute cocaine base: (1) knowing (2) possession of the drugs in question (3) with intent to...
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