United States v. Carillo
| Decision Date | 23 June 2017 |
| Docket Number | No. 15-2200,15-2200 |
| Citation | 860 F.3d 1293 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Jorge CARILLO, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gordon Devon M. Fooks, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant–Appellant.
Marisa A. Ong, Assistant United States Attorney (Damon P. Martinez, United States Attorney, Dean Tuckman, Assistant United States Attorney, Albuquerque, New Mexico, on the brief), for Plaintiff–Appellee.
Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
Jorge Carillo pleaded guilty to, inter alia, conspiring to distribute at least 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. On appeal, he asserts the district court's acceptance of his guilty plea is at odds with Fed. R. Crim. P. 11(b)(1)(G)-(I) and 11(b)(3). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court remands the case to the district court for further proceedings.
A grand jury issued an indictment alleging Carillo, inter alia, conspired with others to distribute at least 100 grams of heroin. The indictment provided:
The individuals charged in the superseding indictment were identified in an investigation that resulted in twenty-nine people being charged, in four different indictments, with conspiring to import and distribute Mexican heroin within the United States.
At his initial appearance, see Fed. R. Crim. P. 5, Carillo acknowledged he received a copy of the indictment and understood the charges against him. He was correctly advised he faced a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of forty years on the conspiracy charge. He specifically stated he understood the applicable minimum and maximum penalties. Thereafter, Carillo and his attorney "discussed pleading guilty with and without a plea agreement." After confirming the government would not enter into an agreement enabling Carillo to plead to an offense that did not carry a mandatory minimum, Carillo's lawyer recommended that he plead guilty.
Carillo pleaded guilty to the conspiracy charge without the benefit of a plea agreement. At the change-of-plea hearing, the district court reminded Carillo the drug count charged him with "conspiring with others to distribute more than a hundred grams of heroin." The district court, however, did not otherwise elucidate the nature or specifics of the charge or discuss the elements of conspiracy. Nevertheless, Carillo told the district court he understood the charges against him. In reciting the penalties Carillo faced, the prosecutor mistakenly stated Carillo was subject to a maximum term of imprisonment of twenty years. The district court did not mention the applicable mandatory minimum term. Cf. 21 U.S.C. 841(b)(1)(B)(i) (). After confirming he had enough time to consult with his lawyer "about the facts and circumstances of [his] case" and was satisfied with his attorney's advice and representation, the district court asked Carillo the following: "How do you plead to Count One which charges you with conspiring with others to distribute more than a hundred grams of heroin, guilty or not guilty?" Carillo responded that he was guilty.
The district court asked the prosecutor to set out the factual basis for the plea (i.e., what the government would be able to prove should Carillo demand a trial). The prosecutor responded as follows:
Your Honor, we would show beyond a reasonable doubt that on or about June 20th, 2013, through October 15th of 2013 in Dona Ana County in the District of New Mexico this Defendant conspired with his co-defendants, Jovita Belmonte–Gonzalez, Andy Nuñez, Kathye Young, Jeremy Sparks and Celena Marquez, to distribute heroin. Specifically, on June 20th of 2013, he provided money to Marquez who traveled to Juarez, Mexico, and purchased approximately 50 grams of heroin from Jovita Belmonte–Gonzalez on his behalf—on this Defendant's behalf. He intended to distribute the heroin.
Carillo answered in the affirmative when queried by the district court as to whether the prosecutor's factual recitation was true.
The district court accepted Carillo's guilty plea, finding he was aware of the nature of the charges he was facing and that the guilty plea was supported by sufficient facts. Before concluding the hearing, the district court asked counsel if there was anything else that needed to be addressed. Counsel responded in the negative. That is, Carillo did not object to the penalties that were recited by the prosecutor, the factual basis the prosecutor provided, or to the court's finding that sufficient facts supported the guilty plea.
Prior to sentencing, a United States Probation Officer prepared a presentence investigation report ("PSR"). The PSR accurately, and repeatedly, set out the applicable five-year mandatory minimum sentence, as well as the forty-year maximum sentence, to which Carillo was subject. The PSR began by noting Carillo's prosecution grew out of an investigation centered around the distribution of large quantities of heroin by Belmonte–Gonzalez. It described Belmonte–Gonzalez's role at the head of four different conspiracies. Regarding the conspiracy to which Carillo pleaded guilty, the PSR ascribed the following conduct to each individual charged in the indictment:
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