Case: 13-10338      Date Filed: 05/19/2014   Page: 1 of 11


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10338
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:99-cr-06153-KMM-2

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

ARMANDO VALENCIA,
a.k.a. Juanito,
a.k.a. Luis Valencia-Valencia,


                                                               Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                   (May 19, 2014)

Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Armando Valencia appeals his conviction and sentence of 235 months’

imprisonment, imposed after he pleaded guilty to one count of conspiracy to

import five kilograms or more of cocaine into the United States, in violation of 21

U.S.C. § 963. On appeal, Valencia argues that the district court erred in denying

his motion for continuance based on the complexity of the case and the extent of

discovery needed. He also argues that the district court erred at sentencing in

failing to recognize its authority to grant a downward departure based on

conditions of pretrial detention and in imposing a three-level aggravating role

enhancement that was not supported by the evidence. Finally, Valencia argues that

defense counsel provided ineffective assistance of counsel in several respects. We

will address each of these arguments in turn.

                                          I.

      We generally review a district court’s denial of a motion for continuance for

abuse of discretion. United States v. Valladares, 

, 1261 (11th Cir.

2008). However, a defendant’s knowing and voluntary, unconditional guilty plea

waives all nonjurisdictional defects in the proceedings. United States v. Yunis, 

, 796 (11th Cir. 1984). Presumably, jurisdictional defects are those

implicating the courts’ subject matter jurisdiction, which “defines the court’s

authority to hear a given type of case.” United States v. Morton, 

,

828, 

, 2773, 

(1984). We have held that a defect is


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jurisdictional where the claim may be resolved on “the face of the indictment or

the record at the time of the plea without requiring further proceedings.” United

States v. Tomeny, 

, 751 (11th Cir. 1998).

       If a defendant waives the right to appeal by pleading guilty, “only an attack

on [the guilty plea’s] voluntary and knowing nature can be sustained.” Wilson v.

United States, 

, 997 (11th Cir. 1992). When a defendant fails to raise

an objection before the district court that his plea was not knowing and voluntary,

we review the claim on appeal only for plain error. United States v. Lejarde-Rada,

, 1290 (11th Cir. 2003). The defendant must show that there is

(1) error, (2) that is plain, (3) that affects substantial rights, and (4) that the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

plea of guilty waives several constitutional rights, the Due

Process Clause of the Fourteenth Amendment requires the plea to be both

voluntary and knowing. Gaddy v. Linahan, 

, 943 (11th Cir. 1986).

Before the district court accepts a guilty plea, there must be an affirmative showing

that the plea was intelligent and voluntary, and the waiver of constitutional rights

will not be presumed from a silent record. Boykin v. Alabama, 

, 242-

43, 

, 1711-12, 

(1969). Under Federal Rule of

Criminal Procedure 11, the district court must address the defendant personally in


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open court and inform the defendant of, and determine that the defendant

understands, the nature of the plea being offered and the potential consequences of

that plea. United States v. Lewis, 

, 1535 (11th Cir. 1997). Rule 11

requires the district court to conduct a searching inquiry into the voluntariness of

the defendant’s guilty plea. United States v. Siegel, 

, 481 (11th Cir.

1996). To determine whether the waiver is knowing and voluntary, a court

accepting a guilty plea must comply with the three “core concerns” of Rule 11 by

ensuring that: (1) the guilty plea is free from coercion; (2) the defendant

understands the nature of the charges; and (3) the defendant understands the direct

consequences of his plea. United States v. Jones, 

, 1418-19 (11th

Cir. 1998).

      We have stated that “[a] district court’s failure to address a core concern of

Rule 11 constitutes plain error.” 

(quotations

omitted). “However, a variance from the requirements of Rule 11 is harmless error

if it does not affect substantial rights . . . .” United States v. Gandy, 

,

1240 (11th Cir.), petition for cert. filed, No. 13-5520 (July 23, 2013). We have

held that where the district court did not explicitly violate Rule 11 there could be

no plain error because there was no precedent from this Court or the Supreme

Court directly resolving the issue. 

. A defendant

who seeks reversal of his conviction after a guilty plea claiming the district court


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committed plain error under Rule 11 must demonstrate that there was a reasonable

probability that but for the error he would not have pleaded guilty. 

.

      Valencia argues in the alternative that: (1) the denial of a motion for a

continuance is a jurisdictional defect that may be challenged in spite of his

subsequent guilty plea; and (2) the denial, even if not directly challengeable on

appeal, resulted in an involuntary guilty plea. First, the denial of a motion for

continuance is not a jurisdictional defect. We have not addressed this question in a

published opinion; however, we have held that an unconditional guilty plea waives

non-jurisdictional defects such as the right to a speedy trial, the right to inspect

grand jury minutes, and the right to challenge the composition of the grand and

petit juries. See United States v. Pierre, 

, 1155-56 (11th Cir. 1997);

United States v. Tallant, 

, 1294 n.4, 1295 (5th Cir. 1977); Winters v.

Cook, 

, 1394-95 (5th Cir. 1972). Similarly, the denial of a motion

for continuance is not the type of claim, such as the failure to charge the correct

offense or a statute of limitations issue, that can be resolved on “the face of the

indictment or the record at the time of the plea without requiring further

proceedings.” 

.

      Second, the district court did not plainly err in accepting Valencia’s guilty

plea. Valencia consented to appear before a magistrate judge, who took Valencia’s


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guilty plea, which was later accepted by the district court. As to the first of Rule

11’s core concerns, the magistrate judge asked Valencia if anyone made him any

promises or inducements, threatened or coerced him or anyone close to him to get

him to change his plea, and Valencia responded in the negative each time.

Regarding Valencia’s understanding of the nature of the charges, he testified that

he reviewed the plea agreement with his attorney prior to signing, and understood

that it required him to plead guilty to conspiracy to import cocaine, after which the

government would seek dismissal of the remaining counts in the indictment. The

magistrate judge reviewed the facts as described in the plea agreement, and

Valencia testified that those facts were true. Finally, Valencia testified that he

signed the written plea agreement after having the agreement translated for him,

and that he understood all of the provisions of the agreement. He understood that

by pleading guilty he waived the right to a jury trial and various other procedural

safeguards with regard to the charge of conspiracy to import cocaine. The

magistrate judge asked whether he knew that by pleading guilty Valencia waived

his right to appeal the conviction, and Valencia spoke with his attorney for a

moment before stating that he understood that he was waiving his right to appeal

his conviction. He testified that he had had the opportunity to review the

sentencing guidelines and discuss potential sentences with his attorney. The

magistrate judge addressed each of Rule 11’s core concerns and did not violate an


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explicit and specific requirement of Rule 11. See 

-

91. Thus, Valencia has failed to show plain error. Accordingly, Valencia waived

his claim regarding the denial of his motion for continuance by pleading guilty.

                                          II.

      We generally do not review the merits of a district court’s refusal to grant a

downward departure, but we may review de novo a defendant’s claim that the

district court mistakenly believed it lacked the authority to grant such a departure.

United States v. Mignott, 

, 1289 (11th Cir. 1999). In United States v.

Pressley, 

, 1218 (11th Cir. 2003), we held “that conditions of

confinement could provide a basis for a departure, since this factor was apparently

not taken into account by the Sentencing Commission and could be unusual

enough to take the case out of the heartland of the applicable guideline range.”

When nothing in the record indicates otherwise, we assume that the district court

understood it had the authority to depart downward, thus precluding review. See

United States v. Chase, 

, 1195 (11th Cir. 1999).

      Valencia’s claim that the district court mistakenly believed it lacked

authority to grant him a downward departure based on his pretrial confinement

conditions lacks merit because it is unsupported by the record. The district court

denied the motion for a downward departure after hearing arguments on the issue

from both Valencia and the government. Nothing in the record indicates that the


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district court mistakenly believed it lacked the authority to grant such a departure.

To the contrary, defense counsel specifically cited to Pressley, both in Valencia’s

objections to the presentence investigation report (“PSI”) and again at sentencing,

and the district court acknowledged that it had seen the case. The government also

acknowledged that at least one court had recognized pretrial conditions of

confinement could serve as the basis for a departure, but argued instead that it was

not a proper basis for a departure under these circumstances, not that such a

departure was beyond the district court’s authority. Valencia’s argument that the

district court mistakenly believed it lacked the authority to grant a downward

departure fails, and to the extent he argues that the district court otherwise erred in

not granting a downward departure, we decline to review his claim. See 

.

                                          III.

      Ordinarily, we review the district court’s findings of fact for clear error and

its application of the Sentencing Guidelines de novo. United States v. Newman,

, 1235 (11th Cir. 2010) (quotation omitted). We “review[] a

sentencing court’s determination of a defendant’s role in the crime for clear error.”

United States v. Gupta, 

, 1197 (11th Cir. 2006). The government

bears the burden of proving the facts needed to support a sentencing enhancement




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by a preponderance of the evidence. United States v. Turner, 

, 572

(11th Cir. 2010).

      However, “[i]t is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.” United

States v. Love, 

, 1157 (11th Cir. 2006) (quotations omitted). We

have held that the invited error doctrine precluded review of a defendant’s claim on

appeal regarding a term of supervised release where defense counsel specifically

requested that the district court impose a term of supervised release in lieu of

additional jail time. 

to review Valencia’s challenge to the three-level managerial role

enhancement because any error in imposing that enhancement was invited by

Valencia. Although Valencia objected to the four-level enhancement calculated by

the PSI, he requested that the district court impose a three-level enhancement

instead. Accordingly, any error in imposing the enhancement was invited by

Valencia and we are precluded from reviewing this challenge on appeal. See 

.

                                         IV.

      We generally will not consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim or

develop a factual record. United States v. Patterson, 

, 1328 (11th


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Cir. 2010). We will, however, consider such a claim on direct appeal “if the record

is sufficiently developed.” 

“The preferred means for

deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255

motion even if the record contains some indication of deficiencies in counsel’s

performance.” 

      We decline to consider Valencia’s claim of ineffective assistance of counsel

because the record is insufficiently developed. The main points of error cited by

Valencia are: (1) defense counsel’s decision to stipulate to the three-level role

enhancement and failure to inform the district court, upon its request for

information, that one of his codefendants did not receive a role enhancement; (2)

failing to move for a variance on the basis of sentencing disparities between

Valencia and his codefendants; and (3) failing to prepare for trial and presenting

Valencia with the government’s plea agreement the day before the change of plea

hearing. It is unclear exactly what facts defense counsel knew of regarding the role

Valencia played in the criminal activity, but defense counsel obtained a one-point

reduction to the role enhancement and factual concessions from the government

regarding Valencia’s criminal activity, and the PSI contains some evidence of

Valencia’s supervisory role. The record does not make clear what, if any, strategic

considerations went into defense counsel’s decision to stipulate to a three-level role

enhancement instead of the four-level enhancement proposed by the PSI. The


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record also presents insufficient information regarding the specific sentences given

to Valencia’s codefendants and the circumstances surrounding those sentences, and

there is no basis from which to evaluate defense counsel’s failure to move for a

variance based on sentencing disparities. Similarly, the record does not contain

any information in support of Valencia’s assertions regarding his counsel’s

preparation for trial and whether it was reasonable to present Valencia with the

government’s plea agreement on the eve of the plea. Accordingly, because this

claim was not raised before the district court and the record is insufficiently

developed, we decline to consider Valencia’s ineffective assistance claim on direct

appeal.

      Based on the above, we affirm Valencia’s convictions and sentence and

decline to consider his claim of ineffective assistance of counsel at this time.

      AFFIRMED.




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