Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-2004

USA v. Bonilla
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3790




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"USA v. Bonilla" (2004). 2004 Decisions. Paper 1014.
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                                                   NOT PRECEDENTIAL

        THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ___________

                        No. 02-3790
                        ___________


              UNITED STATES OF AMERICA

                              vs.

          VICTOR BONILLA a/k/a JOSE BONILLA

                              Victor Bonilla, Appellant

                        ___________


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

               (D.C. Criminal No. 96-cr-00281-2)
        District Judge: The Honorable Herbert J. Hutton

                        ___________

          Submitted Under Third Circuit LAR 34.1(a)
                      January 26, 2004


BEFORE: NYGAARD, FUENTES, and STAPLETON, Circuit Judges.




                  (Filed: February 10, 2004 )

                        ___________
                                 OPINION OF THE COURT
                                      ___________


NYGAARD, Circuit Judge.

              Appellant Victor Bonilla pleaded guilty to drug crimes under 21 U.S.C. §

846, 21 U.S.C. § 841, and 18 U.S.C. § 2. He appeals his conviction and sentence on the

basis that his guilty plea was not knowing and voluntary, because of a deficient colloquy

in the District Court. We will affirm.

                                                I.

              Because the facts are known to the parties, we review them only briefly.

Bonilla pleaded guilty to drug crimes under a cooperative plea agreement with the

Government. Before Bonilla entered his plea, the District Court conducted the following

colloquy, with Bonilla responding that he understood each of his rights as they were

explained:

              [T]he maximum penalty of [the crime with which you are
              charged] is life imprisonment, [with] a ten year mandatory
              minimum term of imprisonment. . . .

              You realize you have an absolute right to go to trial
              and to force the Government to prove your guilt
              beyond a reasonable doubt? . . . You would have a
              right, sir, to a trial by jury or to a trial by a judge sitting
              without a jury. If the Judge did it, the Judge would
              decide both the facts and the law. I would not be the
              Judge to hear it because we have had this conversation.
              If it were a trial by jury, that jury would consist of a
              cross-section of the citizens of the Eastern District of
              Pennsylvania and you could challenge any of them . . .

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              At that trial you would have a right to move to
              suppress any evidence that might have been taken from
              you unconstitutionally or in violation of some rule of
              procedure or statute . . . At that trial you would have a
              right to testify, and you would have a right not to
              testify. . . . At that trial you have a right to compulsory
              process, that is to say you would have a right to
              subpoena witnesses . . . At that trial you would have a
              right to object to any error that might be committed . . .
              and if you succeeded you could have that evidence
              excluded or get a brand new trial on appeal. . . . And if
              it were really bad you could have the whole case
              thrown out. . . . Whereas if you plead guilty you have a
              very narrow right of appeal . . .

              [W]e are having this conversation, so that I can make
              sure you know what you are getting into and that you
              know what you are giving up. . . . [T]here is a chance
              you are going to get a 5K motion [from the
              Government] where they give you a nice, sweet, cheap
              sentence, if you cooperate as they define that term. . . .
              [T]here is no guarantee that they will make that motion
              . . . [E]ven if they make that motion, there is no
              guarantee that I am going to grant it . . . Do you
              understand that, sir? . . . Knowing all this, do you still
              wish to plead guilty?

App. at 26, 38-43. Bonilla indicated that he still wanted to plead guilty, and the Court

accepted his plea.

              At the sentencing hearing several years later, the Government did not enter

a motion for a downward departure under U.S.S.G. §5K1.1. The Government refused to

enter the motion because Bonilla had not provided “substantial assistance” under the

cooperative plea agreement. Bonilla was sentenced to 120 months.




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              We have jurisdiction over Bonilla’s appeal under 28 U.S.C. § 1291 and 18

U.S.C. § 3742.

                                              II.

              The issue presented is whether the District Court’s colloquy was sufficient

to make Bonilla’s guilty plea voluntary and knowing. We apply a plain error standard of

review, since Bonilla made no objection to the colloquy at the time of the plea. See

Johnson v. United States, 

, 466-67 (1997); see also Fed. R. Crim. P. 52(b).

Under the plain error standard of review, Bonilla has the burden to show: (1) there is an

error, (2) that is clear and obvious, and (3) that affects his substantial rights. See United

States v. Olano, 

, 732 (1993). If these factors are established, the decision to

correct the forfeited error still lies within our sound discretion, which we will not exercise

“unless the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” 

omitted). “The entire record, and not simply the

plea colloquy, should be weighed.” United States v. Dixon, 

, 234 (3d Cir.

2002) (citing United States v. Vonn, 

, 59 (2002)).

              Federal Rule of Criminal Procedure 11 governs guilty pleas by a defendant.

Before a District Court accepts a guilty plea, “the court must address the defendant

personally in open court. During this address, the court must inform the defendant of, and

determine that the defendant understands” a litany of rights. Fed. R. Crim. P. 11(b)(1).

This rule is intended to ensure that a defendant’s guilty plea is a voluntary and intelligent



                                               4
decision to waive constitutional rights. United States v. Powell, 

, 180 (3d

Cir. 2001). Whether a guilty plea is voluntary and knowing is a “subjective, highly

individualized test” in which we must “determine if, given the entire record (including the

defendant’s individualized circumstances, criminal record, role in the offense, and

concession for pleading guilty), it affirmatively appears unlikely that . . . [the defendant’s]

ability to assess the risks and benefits of pleading guilty” was hampered. 

              Bonilla argues that despite the lengthy colloquy by the Court, he was not

advised of: (1) his right to assistance of counsel during trial; (2) his right to confront and

cross-examine witnesses; (3) his right against compelled self-incrimination; (4) his

inability to withdraw his plea if the court did not grant a downward departure

recommended by the government; (5) the possibility that untruthful answers could later be

used against him in a prosecution for perjury; and (6) the terms of the cooperative plea

agreement. Bonilla would have us reverse his conviction and sentence on the basis that

he was unaware of these fundamental rights. Bonilla’s argument relies on the Supreme

Court’s discussion in Boykin v. Alabama of several “important” constitutional rights that

are waived when a defendant pleads guilty: the privilege against self incrimination, the

right to trial by jury, and the right to confront one’s accusers. 

, 243 (1969).

              While the District Court in this case certainly advised Bonilla of his right

not to testify and his right to subpoena witnesses, such a colloquy is not adequate to

inform a defendant of his important rights, recognized in Boykin, against compulsory self-



                                               5
incrimination or to confront one’s accusers. Moreover, as noted above, the District Court

colloquy, though lengthy, failed to inform Bonilla of additional rights enumerated in Fed.

R. Crim. P. 11(b)(1). These failures constituted clear error. Cf. United States v. Carter,

, 294 (3d Cir. 1980) (analyzing such failures under the previously-used

harmless error standard).

               We nevertheless conclude that such error did not affect Bonilla’s substantial

rights. “‘Affected substantial rights’ in the context of plain error review ‘in most cases . .

. means that the error must have been prejudicial: It must have affected the outcome of

the district court proceedings.’” United States v. Knobloch, 

, 370 (3d Cir.

1997) (quoting 

). Accordingly, Bonilla “must show that he would

have pled not guilty if he was correctly [advised of his rights], and not merely that there

may or may not have been a prejudicial impact and that he might have not pled guilty.”

. Here, Bonilla does not address this issue of prejudice. He never

specifically claims that he would not, or even that he might not, have pleaded guilty if the

colloquy had contained the required admonitions. Nor does Bonilla allege that he was

otherwise unaware of his rights.1 Thus, under a plain error standard of review, Bonilla is

not entitled to relief.

                                                    III.



1       Indeed, the Government’s brief notes that Bonilla’s Presentence Investigation
Report indicates that he had two previous convictions for aggravated manslaughter and
possession of cocaine. Appellee’s Br. at 20.

                                              6
For the reasons set forth, we will affirm Bonilla’s conviction and sentence.

_________________________




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