USA v. Landeros-lopez

• Decision Date: 03 August 2010
• Docket Number: No. 09-8056.,09-8056.
• Citation: 615 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Blas LANDEROS-LOPEZ, a/k/a Miguel Ayala Aguilar, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

615 F.3d 1260

UNITED STATES of America, Plaintiff-Appellee,

v.Blas LANDEROS-LOPEZ, a/k/a Miguel Ayala Aguilar, Defendant-Appellant.

No. 09-8056.

United States Court of Appeals,Tenth Circuit.

Aug. 3, 2010.

Edwin S. Wall, Edwin S. Wall, P.C., Salt Lake City, UT, for Defendant-Appellant.

Stuart S. Healy, III, Assistant United States Attorney, Cheyenne, WY, for Plaintiff-Appellee.

Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

Blas Landeros-Lopez (“Landeros”) pled guilty to one count of conspiracy to traffic in methamphetamine. On appeal, Landeros argues that the district court failed to elicit a sufficient factual basis to support his guilty plea and denied him the right to speak at sentencing. Our decision today clarifies this circuit's factual basis standard and explains the contours of the right of allocution. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Landeros' conviction, but vacate his sentence and remand for resentencing.

I

Landeros came to the attention of authorities when Alejandro Gonzalez, a known methamphetamine dealer, entered Landeros' apartment while he was under police surveillance. Gonzalez informed law enforcement officers that he had purchased methamphetamine while inside. A subsequent search of the dwelling uncovered approximately 850 grams of methamphetamine, a loaded shotgun, and $2,800 in cash stored in a bedroom Landeros shared with his cousin, Fabian Landeros-Beltran.

Landeros was indicted on one count of conspiracy to traffic in methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846, and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). In March 2009, he agreed to plead guilty to the conspiracy charge in exchange for dismissal of the firearm charge.

At his plea hearing, Landeros was asked to submit a factual basis for his plea pursuant to Federal Rule of Criminal Procedure 11(b)(3). He denied knowing that any methamphetamine sales had occurred in his apartment and denied benefitting from such sales. At the same time, Landeros acknowledged that Landeros-Beltran was selling methamphetamine and that he had accepted rent money from him. ¹ A statement from the prosecutor establishing the amount of methamphetamine in Landeros' constructive possession was also before the district court. Finding a factual basis for each element of conspiracy, the court accepted the plea.

A Presentence Investigation Report (“PSR”) was then prepared, detailing the evidence against Landeros. This evidence included a recitation of facts from the prosecutor's charging documents, as well as proffered statements from Gonzalez and another local drug dealer that implicated Landeros in drug distribution activities. Landeros did not object to these findings. The PSR calculated a sentencing range of 135 to 168 months.

At sentencing, the district court adopted this calculation but granted the government's request for a downward departure. It further opted to vary Landeros' sentence downward and imposed a term of imprisonment of 115 months. After specifying the conditions of Landeros' confinement and supervised release, the district court stated: “That is the sentence the Court intends to impose in this matter. Does the defendant have anything to say before the Court imposes this sentence?” Landeros offered a brief apology, and the court concluded the proceeding. A judgment was entered shortly thereafter. This appeal was then commenced.

II

Federal Rule of Criminal Procedure 11(b)(3) provides: “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This rule is intended “to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.” United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988); see also United States v. Thomas, 367 F.3d 194, 197 (4th Cir.2004) (“[Rule 11(b)(3) ] ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime.” (quotations omitted)). When a defendant fails to object on Rule 11 grounds at sentencing, we review a district court's acceptance of his plea for plain error. United States v. Edgar, 348 F.3d 867, 871 (10th Cir.2003). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the defendant's substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir.2008).

Landeros argues that the district court's acceptance of his plea constituted plain error because there was an insufficient factual basis to support his conviction. He specifically contends that his “tortured colloquy” with the judge during his plea hearing failed to demonstrate the four elements of conspiracy: “(1) that two or more persons agreed to violate the law, (2) that the defendant knew at least the essential objectives of the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and (4) that the alleged coconspirators were interdependent.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir.2007) (quotations and alteration omitted).

Yet, nothing in Rule 11(b)(3) restricts a district court's consideration of a factual basis to its plea colloquy with the defendant alone. United States v. Moran, 452 F.3d 1167, 1171 (10th Cir.2006). We agree with the government that, when read in combination with the prosecutor's statements and the plea colloquy, the PSR provides a sufficient factual basis for the court to accept Landeros' plea. At the beginning of the hearing, the prosecutor established that the amount of methamphetamine in Landeros' constructive possession totaled over 1.5 kilograms. Landeros admitted that Landeros-Beltran was selling drugs, that he was present when Gonzalez purchased methamphetamine, and that he accepted drug proceeds from Landeros-Beltran to pay his rent. The PSR provided greater detail regarding Landeros' conduct, including statements made by Gonzalez and another local drug dealer connecting Landeros and Landeros-Beltran to drug-dealing operations. According to Gonzalez, the two cousins transported methamphetamine between Arizona and Colorado every two to three months. ²

We disagree, however, that this evidence proves that a Rule 11 violation did not occur. “Rule 11 ... contemplates the existence of the factual basis for the plea both when the court accepts the plea, and when it enters judgment on it.” Id. (emphasis added). A district court may look to evidence submitted after a guilty plea has been accepted to determine whether a factual basis for the plea continues to exist; if later evidence destroys the court's initial factual-basis determination, it may withdraw its acceptance of a guilty plea. Id. But a judge's initial determination must be based on information in the record at the time the plea is made. See Keiswetter, 860 F.2d at 996 (“Rule 11 [ (b)(3) ] [is based on] a subjective, rather than objective standard.” (referring to the substantive predecessor of Rule 11(b)(3))).

[4] [5] [6] Because the PSR was not prepared until after Landeros' guilty plea was accepted, we cannot look to it in considering whether the district court correctly determined there was a factual basis for accepting the plea. We can, however, look to the PSR in evaluating whether any error affected Landeros' substantial rights. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (“[A] reviewing court may consult the whole record when considering the effect of any error on substantial rights.”); see also United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (“While the existence of a factual basis for the plea is determined on the basis of the record as of the plea proceeding, in assessing whether the error affects substantial rights, the record as a whole becomes relevant.” (citations omitted)). When the record as a whole demonstrates a sufficient factual basis for a plea, any Rule 11(b)(3) error committed by the district court is harmless. See United States v. Adams, 961 F.2d 505, 511-13 (5th Cir.1992). ³

As noted supra, the full record provides a sufficient factual basis to support Landeros' guilty plea. Thus, any Rule 11(b)(3) error committed by the district court did not affect his substantial rights and does not warrant reversal of the conviction.

III

Landeros also contends he was denied the right of allocution. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires a district court to “address the defendant personally in order to permit the defendant to speak or present any information” before imposing a sentence. Because allocution is vital to the sentencing process, denial of this right requires reversal of the sentence imposed. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion) (“As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal.”); United States v. Jarvi, 537 F.3d 1256, 1262 (10th Cir.2008); (“[A] denial of allocution is per se prejudicial and requires a remand without an investigation of prejudice.”); United States v. Muniz, 1 F.3d 1018, 1025 (10th Cir.1993) (“The right to allocution is an integral part of the sentencing process which if not fully afforded to the defendant requires a reversal of the sentence imposed.”), cert. denied, 510 U.S. 1002, 114 S.Ct. 575, 126 L.Ed.2d 474 (1993). ⁴

At the sentencing hearing, Landeros was afforded an opportunity to speak only after the district court conducted a lengthy recitation of his sentence. Toward the end of the hearing, the court announced:

Pursuant to the Sentencing Reform Act of 1984 and those factors set forth in Title 18 United

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