U.S. v. Villegas-Salazar
| Decision Date | 08 April 1993 |
| Docket Number | No. 90-50381,D,VILLEGAS-SALAZA,90-50381 |
| Citation | 993 F.2d 887 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Enriqueefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before NOONAN and LEAVY, Circuit Judges, and FITZGERALD, ** Senior District Judge.
On December 7, 1989, a white Ford sedan driven at normal speed by a lone male went by United States Border Patrol Agent Searles as he sat in his patrol car on the meridian of Interstate 8 between El Centro and San Diego, California observing westbound traffic. His report indicates that the driver of the sedan did not acknowledge the presence of the Border Patrol agents. Agent Searles decided to follow the sedan. His report indicates that the sedan sank "in a heavy manner as it traveled over normal bumps" and that two other vehicles driven by lone Hispanic drivers followed the sedan at a similar and consistent speed. On the basis of these observations and the reputation of this area of Interstate 8 for drug and alien smuggling, Agent Searles called for assistance and executed a coordinated stop of all three vehicles. The sedan was driven by defendant and appellant Enrique Villegas-Salazar. Agent Searles approached the car and examined the immigration documents handed to him. He noticed the smell of marijuana. He asked appellant if he could look in the trunk. Appellant shrugged visibly and opened the trunk to reveal a large amount of marijuana in bales. Agent Searles placed appellant under arrest.
An indictment returned on December 20, 1989 charged appellant with one count of possession of approximately 167.27 kilograms of marijuana with the intent to distribute it. Appellant filed a motion to suppress evidence. On March 5, 1990, a superseding information was filed charging appellant with possession with intent to distribute 99 kilograms of marijuana and a guilty plea hearing was held before United States District Judge William B. Enright. The agreed amount of 99 kilograms along with a determination of acceptance of responsibility brought the guidelines penalty range for the charge down to 46 to 57 months. After addressing the defendant personally, the district court accepted the waiver of indictment and plea of guilty to the superseding information. On May 14, 1990, appellant was sentenced to 46 months imprisonment followed by three years of supervised release. A final judgment was entered the following day.
On May 23, 1990, appellant filed a timely notice of appeal. However, appellant's retained trial counsel failed to order the transcripts or prosecute the appeal. In October of 1990, without explanation, trial counsel sent appellant a stipulation of voluntary dismissal of his appeal. From October 1990 until February 1991, appellant wrote a number of increasingly distressed letters requesting information on his case. The available record does not disclose any response to appellant's requests. On February 20, 1991, trial counsel filed a one-page Anders brief and on May 8, approximately one year after the notice of appeal, notified his client that he intended to withdraw from the case. On December 18, the court appointed new counsel for appellant. On June 15, 1992, after first appointed counsel failed to meet two separate deadlines to file the opening brief and excerpts of record, the court on its own motion sanctioned and relieved first appointed counsel from the case. Second appointed counsel filed the opening brief and excerpts of record on November 3, 1992, an approximately two and a half year delay. This appeal was submitted on April 8, 1993, approximately three years after the filing of the notice of appeal.
The voluntariness of a guilty plea is subject to de novo review. United States v. Zweber, 913 F.2d 705, 710 (9th Cir.1990); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986) (). The voluntariness of a guilty plea is determined solely from the record of the plea proceedings. United States v. Graibe, 946 F.2d 1428, 1435 (9th Cir.1991).
As a general rule, we will not address issues raised for the first time on appeal. Bolker v. Commissioner of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.1985). Three exceptions exist. We have the discretion to address the new issue if; 1) review is necessary to avoid a miscarriage of justice, 2) a change in the law relevant to the new issue occurs after argument below, or 3) the new issue is a question of law based on a fully developed factual record. Appellant consistently attempted to assert his rights and was unable to do so because of the inattention of counsel. Because the voluntariness of a guilty plea is reviewed de novo based only on the plea hearing, the question reduces to an application of settled law to established facts based on a fully developed record. In United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.) cert. denied, 484 U.S. 832 (1987), we found that an involuntariness challenge to a guilty plea did not fall into any of the three Bolker exceptions. There, the delay could have prejudiced the government's case. In the present case, there is no prejudice to the government because the determination of the voluntariness of a guilty plea is based solely on the record. We therefore reach the merits of appellant's claim that his guilty plea was involuntary.
Rule 11 seeks to insure that the courts accept only knowing and voluntary guilty pleas by requiring that the court address the defendant in open court and inform the defendant of and determine that the defendant understands certain rights, the first of which is the nature of the charge. After all of the requirements of the rule are met, the district court must make a determination based on all of the evidence that there is a factual basis for the plea and that the plea is voluntary. Appellant argues that his plea was not voluntary because the district court failed to adequately inform him of the charges against him. Specifically, appellant contends that an allegedly ambiguous response by the appellant required the district court to further clarify the nature of the charges.
We conclude that the district court satisfied all of the requirements of Fed.R.Crim.Pro. 11(c). The district court informed appellant of the following: the maximum possible penalty including a discussion of supervised release; that the sentencing guidelines apply and that the court may depart from those guidelines under certain circumstances; the right to plead not guilty and receive a jury or bench trial; the right to counsel; the right to confront and cross-examine witnesses; the right to be free from self-incrimination; that a guilty plea waives the right to a trial; and that Appellant's statements under oath may be used against him in a prosecution for perjury. Even more, the record shows that the district court diligently and carefully fulfilled the fundamental duty imposed by Rule 11 to determine that a guilty plea is made voluntarily. The district court established that the elements of the crime were satisfied and no meritorious defenses or constitutional challenges existed to the charge. The district judge carefully explained the practical effect of the right to be free from self-incrimination, examined appellant on his age and level of education, asked appellant if he had used drugs or medication in the last three days, clarified the difference between jury and bench trials, and made a finding that appellant's physical condition and demeanor supported the determination that the guilty plea was voluntary.
Do you understand that to be the charge?
THE DEFENDANT: Yes.
Still later, the interchange upon which appellant bases his argument occurred.
The district court then inquired into the factual basis for the plea. Appellant's trial counsel, Mr. Espinosa, stated that appellant knew that he was transporting marijuana and intended to deliver it to another party. The court then asked appellant to confirm Espinosa's statements.
THE COURT: You heard what your lawyer said about your activities.
Is that true and correct in all respects, sir?
THE DEFENDANT: Yes.
The voluntariness of a guilty plea is determined from evidence of the subjective understanding of the defendant at the time of the plea. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983), cert. denied, 467 U.S. 1215 (1984). The explanation must be sufficient to assure that the plea is voluntary in light of the complexity of the charge, the age and experience of the defendant, and whether he or she is...
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