Filed: Apr. 29, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT APRIL 29, 2005 No. 04-12646 THOMAS K. KAHN Non-Argument Calendar CLERK _ D.C. Docket No. 03-00213-CR-BBM-1-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROSA MARTINES-CHAVES, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (April 29, 2005) Before CARNES, HULL and MARCUS, Circuit Judges. PER CURIAM: Rosa
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT APRIL 29, 2005 No. 04-12646 THOMAS K. KAHN Non-Argument Calendar CLERK _ D.C. Docket No. 03-00213-CR-BBM-1-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROSA MARTINES-CHAVES, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (April 29, 2005) Before CARNES, HULL and MARCUS, Circuit Judges. PER CURIAM: Rosa M..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 29, 2005
No. 04-12646 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00213-CR-BBM-1-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSA MARTINES-CHAVES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 29, 2005)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Rosa Martines-Chaves appeals her conviction and 151-month sentence
imposed following her guilty plea to conspiracy to possess with intent to distribute
500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(viii). On appeal, Martines-Chaves argues: (1) that the district court
erred in accepting her guilty plea because it was not supported by an adequate
factual basis; (2) that the district court erred in denying her motion to withdraw her
guilty plea; and (3) that her sentence should be vacated because it was based upon
a drug quantity in excess of what she admitted, in violation of Blakely v.
Washington, 542 U.S. , 124 S. Ct. 2531(2004).1 After review, we affirm.
I. BACKGROUND
A. First Plea Colloquy
In a written plea agreement, Martines-Chaves pled guilty to conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine. The plea
agreement stated that Martines-Chaves was “pleading guilty because she is in fact
guilty of the crime charged in Count One of the Indictment.” Further, the plea
agreement contained a sentence-appeal waiver that excluded only upward
departures, as follows:
LIMITED WAIVER OF APPEAL: To the maximum extent permitted
by federal law, the defendant voluntarily and expressly waives the
1
After briefing in this case, the Supreme Court decided United States v. Booker, 543 U.S.
__, 125 S. Ct. 738 (2005), which extended Blakely’s holding to the United States Sentencing
Guidelines. Thus, Martines-Chaves’s Blakely argument is now a Booker argument.
2
right to appeal her sentence and the right to collaterally attack her
sentence in any post-conviction proceeding on any ground, except that
the defendant may file a direct appeal of an upward departure from the
otherwise applicable sentencing guideline range. The defendant
understands that this Plea Agreement does not limit the Government’s
right to appeal, but if the Government appeals the sentence imposed,
the defendant may also file a direct appeal of her sentence.
During the plea colloquy, the district court advised Martines-Chaves of the
rights she waived by pleading guilty. Martines-Chaves then stated that she did not
know if she wanted to plead guilty. The district court responded that if she did not
want to plead guilty, she would get a trial. Martines-Chaves then stated that she
wanted to plead guilty.
After Martines-Chaves signed the plea agreement, the district court asked
her if anyone had promised her anything that was not contained in the agreement.
Martines-Chaves acknowledged that no other promises had been made. She
further acknowledged that no one had threatened or forced her into pleading guilty.
The government then gave the factual basis for the plea. According to the
government, on March 9, 2003, an Arkansas State Police trooper stopped co-
defendant Manual Perez for a traffic violation on an interstate near Russellville,
Arkansas. After giving Perez a warning, the trooper asked Perez if he could search
the vehicle. Perez consented, and the trooper found approximately 12 kilograms of
a substance containing methamphetamine in a backpack in the car. The trooper
3
then arrested Perez and took him to the county sheriff’s department.
Upon questioning, Perez told police that he was hired to transport the drugs
for Oscar Cardona, another co-defendant in this case. Members of the Arkansas
State Police and the DEA then recorded a series of conversations between Cardona
and Perez. During the conversations, Cardona instructed Perez to drive to Atlanta
with the drugs. An unidentified male also said that he could have “the female pick
up the meth.”
On March 11, 2003, Cardona and Perez met at a gas station. Defendant
Martines-Chaves arrived with Cardona in a Lincoln Navigator. Cardona told Perez
to wait at a nearby Waffle House restaurant while he drove Perez’s car to a house
to secure the drugs.
Agents then observed Cardona leave the gas station and defendant Martines-
Chaves follow in the Navigator. At an intersection, Cardona and Martines-Chaves
had a conversation, after which Cardona traveled in one direction and Martines-
Chaves traveled in another. Agents followed Cardona to a residence where he was
arrested. He stated that he worked for Martines-Chaves, that he had picked up two
loads of methamphetamine for her in the past, and that she had rented that
residence where he was arrested to store the drugs. At the drug-storage residence,
agents found empty kilogram wrappers, drug residue, a chemical known for
4
manufacturing methamphetamine, and approximately $10,000 in cash. On
Cardona’s person, agents found keys to the drug-storage residence and to
defendant Martines-Chaves’s residence.
After the government’s recitation, the district court asked defendant
Martines-Chaves if the government’s description of her involvement was correct.
Martines-Chaves responded that “[t]here are some things which are true, some
things which are very true, and there are some things which are not true.” The
district court then asked Martines-Chaves if she had entered into an agreement to
distribute methamphetamine. Martines-Chaves indicated that she had not. The
district court then ended the plea colloquy and set the case for trial.
B. Second Plea Colloquy
On August 7, 2003, defendant Martines-Chaves appeared again before the
district court to enter a guilty plea. The district court gave Martines-Chaves all of
the advisements required under Rule 11. For example, the district court affirmed
that Martines-Chaves had sufficient access to an interpreter in order to
communicate with her lawyer, that she understood her plea agreement, that she had
reviewed it with her lawyer, and that she was satisfied with the representation of
her lawyers. The district court also affirmed that no one had forced Martines-
Chaves to plead guilty and that no one had promised her anything other than what
5
was in the plea agreement.
The government provided the same factual basis as the previous plea
colloquy, adding a couple of facts. The government stated that Cardona told the
arresting agents that on the morning of March 11, 2003, Martines-Chaves had
given Cardona a key ring containing the keys to the drug-storage residence and to
her residence. Further, a search of Martines-Chaves’s residence yielded
methamphetamine and an electronic scale. Numerous papers related to drug
transactions also were found.
The district court then asked Martines-Chaves if the facts stated by the
government were correct. Martines-Chaves responded that the government
“described what Cardona told [the investigator], and Cardona said some things
which are not true.” The district court then specifically asked Martines-Chaves if
she entered into an agreement with Cardona and Perez to possess
methamphetamine with intent to distribute it. Martines-Chaves replied in the
affirmative as follows:
COURT: Okay. You are charged, . . . with conspiring
with Mr. Cardona and Mr. Perez to possess
with intent to distribute methamphetamine.
Do you understand that?
MARTINES-CHAVES: Yes.
COURT: All right. In order to be guilty of that crime you
would have had to have entered into an agreement
with those gentlemen to do something unlawful.
6
In this case, the unlawful act as charged is
possession of methamphetamine with intent to
distribute it. Did you enter into such an agreement
with Mr. Cardona.
MARTINES-CHAVES: Yes. Prior to, I did have some agreements
with Mr. Cardona.
COURT: All right. And was the agreement to take
methamphetamine into his possession or
your possession for further distribution?
MARTINES-CHAVES: No. Because somebody supplies the stuff to
him. He is sent the stuff to distribute to a
number of people and one of the persons
that often distribute[s] the drugs was me.
COURT: All right. Good enough. And you knew it
was methamphetamine?
MARTINES-CHAVES: Yes.
During the plea colloquy, Martines-Chaves thus admitted that methamphetamine
was supplied to Cardona for distribution to a number of people and that one of
those persons was Martines-Chaves. Thus, Martines-Chaves expressly admitted
that she was involved with Cardona’s distribution of the methamphetamine and
had agreed to be part of his scheme to distribute methamphetamine. The district
court found that there was a factual basis for Martines-Chaves to plead guilty to
conspiracy to possess methamphetamine with intent to distribute.
The district court also specifically discussed the sentence-appeal waiver in
the plea agreement, ensuring that Martines-Chaves’s counsel believed the appeal
waiver was in the defendant’s best interest and also that Martines-Chaves
understood that she was limiting her right to appeal her sentence. At the end of the
7
plea colloquy, the district court accepted Martines-Chaves’s guilty plea and
adjudged her guilty.
C. Presentence Investigation Report
The PSI assigned Martines-Chaves (1) a base offense level of 38, stating that
she was responsible for 9.62269 kilograms of methamphetamine,2 and (2) a two-
level increase for obstruction of justice. With a total offense level of 40 and a
criminal history category of I, Martines-Chaves’s Guidelines range was 292-365
months’ imprisonment.
D. Motion to Withdraw Her Plea
After the PSI was prepared, Martines-Chaves wrote a letter to the district
court stating that her attorney had coerced her into pleading guilty by threatening
that she would receive life imprisonment if she did not plead guilty.3 Martines-
Chaves indicated that her lawyer brought her only the last page of the plea
agreement to sign, and that she did not know what the rest of the agreement stated.
She also claimed that, although her attorney brought the PSI to her, neither he nor
the interpreter explained it to her. Martines-Chaves alleged that a Hispanic inmate
2
The indictment charged Martines-Chaves with conspiracy to possess with intent to distribute
at least 500 grams of methamphetamine. The PSI recommended a drug quantity of 9.62269 based
on (1) the 9.5808 kilograms found in Perez’s backpack; (2) .0412 kilograms found in a bucket in
Martines-Chaves’s residence; and (3) .00069 kilograms also found in Martines-Chaves’s residence.
3
The letter is undated; however, the district court received it on October 10, 2003.
8
interpreted the PSI for her, and that the PSI contained “lies.” Martines-Chaves
requested to see the plea agreement and the PSI again in Spanish and requested a
new attorney.
The district court construed Martines-Chaves’s letter as a motion to
withdraw her plea. Martines-Chaves, through new counsel, then filed a formal
motion to withdraw her plea. The motion argued that there was no factual basis for
her plea because, although she had admitted that she had “prior” agreements with
Cardona to distribute drugs, she did not admit to conspiring with him during the
March 4 through March 11, 2003 period alleged in the indictment.
During the hearing on the motion to withdraw her guilty plea,4 Martines-
Chaves testified that she did not want to sign the plea agreement, but was coerced
by her former attorney. On cross-examination, Martines-Chaves acknowledged
that during the August 7, 2003 plea colloquy she failed to mention that her attorney
coerced her into signing the plea agreement. Martines-Chaves also stated that
although she told the district court during the August 7, 2003 plea colloquy that she
understood the plea agreement and had gone over it with her attorney, she actually
did not understand the agreement and had not gone over all of it with her attorney.
Further, Martines-Chaves stated that the plea agreement was not translated from
4
Martines-Chaves’s new counsel represented her at this hearing.
9
English to Spanish for her prior to the August 7, 2003 plea colloquy. The district
court interjected that it knew for a fact that the plea agreement had been translated
into Spanish, as follows:
I happen to know, . . . that is a falsehood. You are under oath. I know
the plea agreement has been translated for you, and so for you to sit
there and say under oath and say nobody has read it to you in Spanish
is a falsehood and I charge you that you can be charged with perjury
for sitting there and lying under oath.
At the end of the hearing, the district court stated that it believed that
Martines-Chaves was not truthful with respect to her testimony, as follows:
I feel very strongly that you have been very disrespectful of the
institution of this court. We have bent over backwards to be
respectful to you. We have accommodated you every time you have
asked to see this court. We have hired interpreters to help you. We
have permitted you to change lawyers. We have let you have two
lawyers instead of one on one occasion. And every time the going
gets tough, you don’t exactly tell the truth, you can’t remember, you
don’t want to answer the question. And I have very strong feelings
that you are entitled to respect from me, but my feelings are equally
strong that you owe respect to this proceeding and all the proceedings
[in which] you’ve appeared, and it’s my very strong feeling that you
have failed to show that. I think that you have not told the truth on the
stand today, and I don’t think it’s the first time that’s happened in
front of me.
In a written order, the district court denied Martines-Chaves’s motion to
withdraw her plea.
E. Sentencing
As noted above, the PSI recommended an offense level of 38 based on
10
9.62269 kilograms of methamphetamine. At sentencing, the district court granted
Martines-Chaves’s requests for a two-level safety-valve reduction under U.S.S.G.
§ 2D1.1(b)(6) and a two-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. The district court also sustained her objection to receiving a
two-level increase for obstruction of justice under § 3C1.1. These reductions
reduced Martines-Chaves’s offense level to 34. With a total adjusted offense level
of 34, and a criminal history category of I, Martines-Chaves’s new guidelines
range was 151-188 months’ imprisonment.5 The district court sentenced her to 151
months’ imprisonment, followed by five years’ supervised release. Martines-
Chaves appealed.
II. DISCUSSION
A. Factual Basis for Guilty Plea
Martines-Chaves contends that the district court erred in accepting her guilty
plea because there was an insufficient factual basis for the plea, in violation of
Rule 11(f). Subsection (f) of Rule 11 provides: “Notwithstanding the acceptance
of a plea of guilty, the court should not enter a judgment upon such plea without
making such inquiry as shall satisfy it that there is a factual basis for the plea.”
5
As noted earlier, the PSI recommended a Guidelines range of 292-365 months’
imprisonment, but the district court did not accept the obstruction-of-justice enhancement. The two
reductions granted by the district court decreased the Guidelines range to 151-188 months’
imprisonment.
11
Fed. R. Crim. P. 11(f).6 “A district court accepting a plea must determine whether
the conduct which the defendant admits constitutes the offense to which the
defendant has pleaded guilty.” United States v. DePace, 120 F.3d 233, 238 (11th
Cir. 1997) (internal quotation marks, ellipsis, and citation omitted). “In evaluating
whether a district court complied with Rule 11(f), we must determine whether the
district court was presented with evidence from which it could reasonably find that
the defendant was guilty.” United States v. Camacho,
233 F.3d 1308, 1317 (11th
Cir. 2000) (internal brackets, internal quotation marks, and citation omitted).
“To convict a defendant for conspiracy under 21 U.S.C. § 846, the evidence
must show (1) that a conspiracy existed, (2) that the defendant knew of it, and (3)
that the defendant, with knowledge, voluntarily joined it.” United States v. Perez-
Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994) (citation omitted). “Guilt may exist
even when the defendant plays only a minor role and does not know all the details
of the conspiracy.”
Id. (citation omitted); see also United States v. Pedrick,
181
F.3d 1264, 1272 (11th Cir. 1999) (“Indeed, the evidence need not show that each
defendant knew of each phase of the conspiracy, all of its details, all of the
conspirators, or the participants in each event.” (citation omitted)). Further, to join
6
“The purpose of Rule 11(f) is to protect a defendant who mistakenly believes that his
conduct constitutes the criminal offense to which he is pleading.” United States v. DePace, 120 F.3d
233, 238 n.8 (11th Cir. 1997) (internal quotation marks and citation omitted).
12
a conspiracy to distribute drugs, a defendant need not actually agree to sell the
drugs himself. See United States v. Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002)
(“[A] drug conspiracy may involve ancillary functions (e.g., accounting,
communications, strong-arm enforcement), and one who joined with drug dealers
to perform one of those functions could be deemed a drug conspirator.” (citation
omitted)); United States v. Burgos,
94 F.3d 849, 859 (9th Cir. 1996) (“[A] variety
of conduct, apart from selling narcotics, can constitute participation in a conspiracy
sufficient to sustain a conviction.”).
In this case, the government’s factual proffer described in detail Martines-
Chaves’s agreement to become part of Cardona’s methamphetamine distribution
network. Although Martines-Chaves stated that some of the information was not
true, she specifically admitted that Cardona had a drug distribution network with
other people and that she had agreed with Cardona to receive drugs from him, and
thus that she had entered into an agreement with Cardona to become part of his
methamphetamine distribution network. The government’s evidence combined
with Martines-Chaves’s admission is sufficient to support her guilty plea.
Further, it was reasonable for the district court not to probe further into the
nature of Martines-Chaves’s admitted agreement with Cardona simply based on
her statement that “[p]rior to, [she] did have some agreements with Mr. Cardona.”
13
During the first plea colloquy on August 1, 2003, and after the government recited
all of the facts supporting the guilty plea, Martines-Chaves stated that she did not
have an agreement with Cardona to distribute methamphetamine in March 2003.
That is why the district court terminated the plea hearing and set the case for trial.
However, at no time during the August 7, 2003 plea colloquy, even after the
government recited all of the facts again, did Martines-Chaves deny an agreement
with Cardona. At both plea colloquy hearings, the district court meticulously and
carefully questioned Martines-Chaves regarding her guilty plea. At the August 7,
2003 plea colloquy it was reasonable for the district court not to question Martines-
Chaves further after she admitted that she had received drugs from Cardona as part
of his distribution network.
B. Withdrawal of Guilty Plea
Next, Martines-Chaves argues that the district court erred in denying her
motion to withdraw her guilty plea because she had a fair and just reason for
withdrawal, namely, her continued statements of innocence, which negated the
intelligent and voluntary nature of her plea. She contends that the determination of
whether her plea was knowing and voluntary was complicated by the fact that there
was a language barrier, and asserts that the government would not be prejudiced by
the withdrawal of her plea, as both co-defendants are in custody and available to
14
testify.
Under Rule 11(d)(2)(B), a defendant may withdraw a guilty plea after the
court accepts it, but before sentencing, if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In
determining whether there is a fair and just reason for the withdrawal, the district
court should evaluate “the totality of the circumstances, including: (1) whether
close assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
plea.” United States v. Cesal, 391 F.3d 1172, 1179 (11th Cir. 2004).7
We conclude that the district court did not abuse its discretion in denying
Martines-Chaves’s motion to withdraw her guilty plea. First, close assistance of
counsel was available to Martines-Chaves. Martines-Chaves’s attorney negotiated
a favorable plea agreement on Martines-Chaves’s behalf and retained an interpreter
to explain the entire plea agreement to her. During the August 1, 2003 plea
colloquy the district court noted that English was not Martines-Chaves’s native
language. However, Martines-Chaves expressly indicated that she had sufficient
7
“We review a district court’s denial of a motion to withdraw a guilty plea for an abuse of
discretion. We will only reverse a district court’s denial of a motion to withdraw if it is ‘arbitrary
or unreasonable.’” Cesal, 391 F.3d at 1179 (internal quotation marks and citations omitted).
15
contact with her interpreter to communicate with her attorney. Further, during the
August 7 plea colloquy, Martines-Chaves admitted that she was satisfied with her
counsel.
Second, the record shows that Martines-Chaves’s plea was knowing and
voluntary. Martines-Chaves testified at both plea colloquies that no one had
threatened or forced her into pleading guilty and that no promises were made
outside those contained in the plea agreement. The district court also informed
Martines-Chaves of the maximum and minimum penalties for her offense, so she
was fully aware of the consequences of her guilty plea. The district court also
explained the charge against Martines-Chaves and ensured there was a factual basis
for the plea. Finally, Martines-Chaves agreed in the plea agreement that she was
pleading guilty to the drug conspiracy count because she was, in fact, guilty of that
count.
Third, if Martines-Chaves were allowed to withdraw her plea, judicial
resources would have been wasted, not conserved. During Martines-Chaves’s first
plea hearing, the district court gave her several opportunities to go to trial when she
began making statements that were inconsistent with her guilt. However,
Martines-Chaves rejected her opportunities to go to trial. Having given Martines-
Chaves numerous opportunities to go to trial, it would have been a waste of
16
judicial resources to allow her to undo her plea, to empanel a jury, and to conduct a
trial in a case where she had persisted in pleading guilty. In sum, the district court
did not abuse its discretion in denying Martines-Chaves’s motion to withdraw her
guilty plea.
C. Blakely/Booker Argument
Finally, Martines-Chaves argues that her sentence violated Blakely because
it was based on a drug quantity neither admitted by her nor found by a jury. She
asserts that a defendant cannot waive the right to appeal a sentence imposed in
excess of the statutory maximum, and suggests that her sentence exceeded the
“statutory maximum” as explained in Blakely.
This Court has held that a defendant may waive the right to raise a
Blakely/Booker challenge to his or her sentence. See United States v. Grinard-
Henry, 399 F.3d 1294, 1296 (11th Cir. 2005), petition for cert. filed, April 5, 2005
(No. 04-9566). Martines-Chaves’s plea agreement contained a sentence-appeal
waiver in which she waived the right to appeal her sentence except in the case of:
(1) an upward departure from the otherwise applicable Guidelines range; or (2) a
government appeal. Because Martines-Chaves’s Blakely/Booker argument does
not fall within either exception to her appeal waiver, she is precluded from raising
the Blakely/Booker issue on appeal.
17
III. CONCLUSION
For the foregoing reasons we affirm Martines-Chaves’s drug conviction and
151-month sentence.
AFFIRMED.
18
