United States v. Alvarado-Casas

• Decision Date: 14 May 2013
• Docket Number: No. 12–40295.,12–40295.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Servando ALVARADO–CASAS, also known as El Chino, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

715 F.3d 945

UNITED STATES of America, Plaintiff–Appellee

v.Servando ALVARADO–CASAS, also known as El Chino, Defendant–Appellant.

No. 12–40295.

United States Court of Appeals, Fifth Circuit.

May 14, 2013.

Terri–Lei O'Malley (argued), Asst. U.S. Atty., Renata Ann Gowie, Asst. U.S. Atty., U.S. Atty.'s Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt (argued), Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

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

Before DAVIS, GRAVES, and

HIGGINSON, Circuit Judges.¹

HIGGINSON, Circuit Judge:

For the first time on appeal, Defendant–Appellant Servando Alvarado–Casas challenges his federal guilty plea conviction of conspiracy to commit aggravated alien transporting, arguing principally that his plea lacks an adequate factual basis, and that the district court misadvised him as to his sentencing exposure, rendering his plea involuntary. Concluding that the district court's error in accepting his guilty plea, if any, was not plain, and that its admonishment regarding his sentencing exposure, though clear error, did not materially affect his decision to plead guilty, we AFFIRM.

FACTS AND PROCEEDINGS

Servando Alvarado–Casas was charged by indictment with twelve counts of transporting unlawful aliens causing serious bodily injury to, or placing in jeopardy the life of, any person, and one count of conspiring to commit that offense. Pursuant to a signed plea agreement, Alvarado–Casas agreed to plead guilty to the conspiracy count and to waive his right to appeal his conviction and sentence in exchange for the government's promise to dismiss the remaining counts in the indictment and to make certain sentencing recommendations. The plea waiver reads as follows:

Defendant waives his/her right to appeal both the conviction and the sentence imposed. Defendant is aware that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only (a) a sentence imposed above the statutory maximum; or (b) an upward departure from the Sentencing Guidelines which had not been requested by the United States, as set forth in 18 U.S.C. § 3742(b). Additionally, the defendant is aware that 28 U.S.C. § 2255, affords the right to contest or “collaterally attack” a conviction or sentence after the conviction or sentence has become final. The defendant waives the right to contest his/her conviction or sentence by means of any post-conviction proceeding.

At rearraignment, the district court asked Alvarado–Casas if he had read the plea agreement, had understood its terms, and had signed it voluntarily. Alvarado–Casas responded that he had. The district court admonished Alvarado–Casas that he faced up to ten years of imprisonment, and would not be allowed to withdraw his guilty plea if the sentence imposed was more severe than he expected. Alvarado–Casas responded that he understood. The district court explained the elements of the conspiracy offense and asked Alvarado–Casas if he understood them. Alvarado–Casas responded that he did. The government then gave the following factual basis statement:

[O]n November 24th of 2009, border patrol agents advised ICE of a motor vehicle accident in which 17 illegal aliens and the driver [of the] vehicle had gone off an embankment, approximately a 40–foot drop. Border patrol agents and ICE officials responded to the area. They were able to determine that the 17 individuals that were in the bed of the pickup truck were illegally present in the United States. The majority were from Guatemala with, I believe, three Mexican citizens. One driver of the vehicle was identified as Patricio Rebollar. He, as well as the aliens were all transported to surrounding area hospitals.... ICE agents spoke to Patricio Rebollar, and he advised that he was, in fact, the driver of the pickup trunk and that he was transporting illegal aliens. He indicated that he was transporting the aliens for an individual that he identified as Chino. ICE agents were able to identify the individual that he identified as Chino as Servando Alvarado–Casas.

After confirming that the government's statement was accurate, Alvarado–Casas pleaded guilty to the conspiracy offense, and the court accepted his plea.

At sentencing, the district court adopted the presentence report (“PSR”) and calculated Alvarado–Casas's Guidelines range to be 188 to 235 months of imprisonment based on a total offense level of 34 and a criminal history category of III.² Alvarado–Casas made a number of objections, including that separate adjustments to his offense level for use and transportation of a minor constituted impermissible double counting. The district court overruled the “double counting” objection, and sentenced Alvarado–Casas to 190 months of imprisonment. Alvarado–Casas did not file a timely notice of appeal.

In June 2008, Alvarado–Casas filed a § 2255 motion challenging his conviction and sentence on the ground that his counsel provided constitutionally ineffective assistance by failing to file a timely notice of appeal. After holding an evidentiary hearing, the district court dismissed the § 2255 motion without prejudice, granted Alvarado–Casas leave to file an “out-of-time” direct appeal, and appointed counsel for that purpose. ³ This appeal followed.

DISCUSSION

On appeal, Alvarado–Casas argues that: (1) his conviction lacks an adequate factual basis because the stipulated facts did not establish that he personally caused serious injury to, or placed in jeopardy the life of, another person during and in relation to the offense; (2) his guilty plea was involuntary because the district court misadvised him of the nature of the conspiracy offense and the statutory maximum it carried and failed to ensure that he understood the consequences of waiving his right to appeal; and (3) his sentence was improperly calculated because it was based on separate adjustments to his offense level for use and transportation of a minor, which, he contends, constituted impermissible double counting.

I. Factual Basis

Rule 11 of the Federal Rules of Criminal Procedure was designed to “ensure that a guilty plea is knowing and voluntary, by laying out the steps a trial judge must take before accepting such a plea.” United States v. Vonn, 535 U.S. 55, 58, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). One such step is determining that a defendant's guilty plea is supported by an adequate factual basis. Fed.R.Crim.P. 11(b)(3) (“Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”). The factual basis requirement “protect[s] a defendantwho may plead with an understanding of the nature of the charge, but without realizing that his conduct does not actually fall within the definition of the crime charged.” United States v. Spruill, 292 F.3d 207, 215 (5th Cir.2002) (quoting United States v. Johnson, 546 F.2d 1225, 1226–27 (5th Cir.1977)) (internal quotation marks omitted). In reviewing guilty pleas for compliance with Rule 11(b)(3), the court evaluates whether “the factual conduct to which the defendant admits is sufficient as a matter of law to constitute a violation of the statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir.2001) (en banc) (emphases omitted).

The offense of conspiracy to transport unlawful aliens, 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I), makes it a crime for a person to conspire to transport an alien within the United States, knowing or recklessly disregarding the fact that the alien was unlawfully present, with intent to further the alien's unlawful presence. Fifth Circuit Pattern Criminal Jury Instructions § 2.03 (2012). A person convicted of conspiracy to transport unlawful aliens is subject to a statutory maximum sentence of 10 years of imprisonment, 8 U.S.C. § 1324(a)(1)(B)(i), unless “during and in relation to” the offense, “the person causes serious bodily injury (as defined in section 1365 of Title 18) to, or places in jeopardy the life of, any person,” in which case the statutory maximum increases to 20 years of imprisonment, § 1324(a)(1)(B)(iii). This “serious bodily injury” aggravator is an element of a aggravated offense and, as such, must be alleged in the indictment and proved beyond a reasonable doubt. See United States v. Williams, 449 F.3d 635, 644–45 (5th Cir.2006) (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). For ease of reference, we will refer to this aggravated offense as “conspiracy to commit aggravated alien transporting.”

Alvarado–Casas argues that his conviction for conspiracy to commit aggravated alien transporting lacks an adequate factual basis, reasoning that (1) the offense requires proof that he personally and directly caused serious bodily injury to, or placed in jeopardy the life of, any person, and (2) the factual basis statement made by the government at the rearraignment hearing establishes that Patricio Rebollar, the driver of the truck, and not Alvarado–Casas, the ringleader of the alien trafficking operation, caused the serious bodily injury to, and placed in jeopardy the lives of, the aliens involved.⁴ Alvarado–Casas points out that unlike most federal bodily injury and death enhancements, which are triggered if bodily injury or death “results” from the offense,⁵ the enhancement provision at issue here is triggered only if “ the person,” the specific defendant whose guilt is at issue, “ causes serious bodily injury ... to, or places in jeopardy the life of, any person,” § 1324(a)(1)(B)(iii) (emphasis added). As evidence that this is a distinction with a difference, Alvarado–Casas contrasts § 1324(a)(1)(B)(iii) to § 1324(a)(1)(B)(iv), which provides that “ a violation ... resulting...