Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1043




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"USA v. Ruiz" (2008). 2008 Decisions. Paper 1158.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1158


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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       No. 07-1043


                             UNITED STATES OF AMERICA

                                            v.

                                      MARIO RUIZ,
                                                Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 05-cr-00519-1)
                 District Judge: The Honorable Michael M. Baylson


                         Submitted Under Third Circuit LAR 34.1(a)
                                       May 5, 2008


       Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges

                               Opinion Filed: May 22, 2008


                                        OPINION


BARRY, Circuit Judge

      Mario Ruiz (“Ruiz”) appeals the judgment of sentence. For the reasons stated

below, we will affirm.
                                               I.

       Insofar as we write exclusively for the parties, we will set forth only those facts

that are relevant to our disposition of this appeal.

       A federal grand jury indicted Ruiz and his brother, Carlos Ruiz, for conspiracy to

distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. § 846. Due to his

extensive criminal history, Ruiz faced a 20-year mandatory minimum term of

imprisonment if convicted. He ultimately pled guilty pursuant to a negotiated plea

agreement under which the government agreed to file a motion for downward departure

pursuant to USSG § 5K1.1 and for imposition of a sentence below any mandatory

minimum term of imprisonment pursuant to 18 U.S.C. § 3553(e) if Ruiz fully cooperated

with the government’s investigation and did not commit any crimes subsequent to the

execution of the agreement. The agreement included a provision in which Ruiz waived

his right to appeal unless (1) the government appealed, (2) his sentence exceeded the

statutory maximum sentence, or (3) “the sentencing judge unreasonably departed upward

from the otherwise applicable sentencing guideline range.” (App. at 22.)

       In March 2006, the government informed Ruiz that it intended to file a motion on

his behalf pursuant to sections 5K1.1 and 3553(e). It did not do so, however, because it

learned that Ruiz had been arrested and charged in New York with possession with intent

to deliver approximately 93 kilograms of cocaine. Ruiz moved to withdraw his guilty




                                               2
plea, but the District Court denied the motion and sentenced him to a term of

imprisonment of 262 months. This timely appeal followed.

       Ruiz argues that the District Court erred by denying his motion to withdraw his

plea. Although he acknowledges the existence of the waiver of appeal, he argues that it is

invalid because the District Court failed to discuss it with him during the plea colloquy.

Only if the waiver is invalid do we need to reach the issue of the propriety of denying the

motion to withdraw.

                                             II.

       We will enforce a waiver of appeal that is entered into knowingly and voluntarily,

unless to do so would result in “an error amounting to a miscarriage of justice.” United

States v. Khattak, 

, 562 (3d Cir. 2001). We do this because “[a]llowing

defendants to retract waivers would prolong litigation, affording defendants the benefits

of their agreements while shielding them from their self-imposed burdens.” 

       The determination of whether a waiver of appeal is “knowing and voluntary”

depends in large part on the district judge’s compliance with Federal Rule of Criminal

Procedure 11. 

Rule 11 requires the district judge to personally address the

defendant in open court to confirm that the defendant is aware of, and understands, both

the rights he or she is waiving by pleading guilty and the specific terms of the agreement,

including “any plea-agreement provision waiving the right to appeal or to collaterally

attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).



                                             3
       We are unpersuaded by Ruiz’s argument that his plea is invalid because the

District Court failed to “personally address” his waiver of appeal during the Rule 11

colloquy. While the District Court did not expressly ask Ruiz whether he knew he was

waiving his right to appeal, Ruiz acknowledged having read and signed both the plea

agreement and the accompanying two-page acknowledgment of rights. He confirmed that

he fully understood both documents and had been given an opportunity to speak with his

attorney about them. Most importantly, Ruiz was present at counsel table with his brother

during their joint plea hearing when the District Court thoroughly reviewed the details of

the brother’s plea agreement, including the agreement’s waiver of appeal provision.

Because the brothers’ plea agreements were identical in all relevant respects, the District

Court asked Ruiz for permission to conduct an abbreviated plea colloquy. Ruiz did not

object to proceeding in this manner. When asked whether he was satisfied with the

explanation of the plea agreement provided during his brother’s plea colloquy, Ruiz

responded that he was.

       While the better course would have been for the District Court to recapitulate the

terms of the plea agreement with Ruiz, we are more than satisfied that the procedure

followed by the District Court did not affect Ruiz’s substantial rights, rendering any error

in this respect harmless. See Fed. R. Crim. P. 11(h) (“A variance from the requirements

of this rule is harmless error if it does not affect substantial rights.”). In light of the plea

agreement, the acknowledgment of rights, and the Rule 11 colloquy, we find that Ruiz’s



                                                4
waiver of appeal was knowing and voluntary. While an “error amounting to a

miscarriage of justice may invalidate” an otherwise valid waiver, 

, no such circumstance exists here.1

                                             III.

       The judgment of the District Court will be affirmed.




   1
     Having established that the waiver of appeal is valid, we have little difficulty in
concluding that the appeal falls within its scope and, thus, do not reach the merits of
Ruiz’s claim that the District Court erred in denying his motion to withdraw his plea.

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