Filed: May 14, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4881 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRES WILFREDO TORRIENTE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:07-cr-01363-HFF-2) Submitted: March 10, 2010 Decided: May 14, 2010 Before MICHAEL, 1 SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSO
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4881 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRES WILFREDO TORRIENTE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:07-cr-01363-HFF-2) Submitted: March 10, 2010 Decided: May 14, 2010 Before MICHAEL, 1 SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSON..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRES WILFREDO TORRIENTE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-01363-HFF-2)
Submitted: March 10, 2010 Decided: May 14, 2010
Before MICHAEL, 1 SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. W. Walter Wilkins, United States
Attorney, Leesa Washington, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
1
Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Andres Wilfredo Torriente appeals from his conviction
and 240-month sentence entered pursuant to his guilty plea to
conspiracy to possess with intent to distribute and to
distribute cocaine. On appeal, Torriente challenges the Fed. R.
Crim. P. 11 hearing, the voluntariness of his plea, and his
statutory mandatory minimum sentence. We affirm.
I.
Torriente first contends that the factual basis
established was insufficient to support his guilty plea because
it showed only that Torriente knew of the drug conspiracy; it
failed to show that he participated in it. Fed. R. Crim. P.
11(b)(3) provides that “[b]efore entering judgment on a guilty
plea, the court must determine that there is a factual basis for
the plea.” The rule is “intended to ensure that the court make
clear exactly what a defendant admits to, and whether those
admissions are factually sufficient to constitute the alleged
crime,” and it “is designed to protect a defendant who is in the
position of pleading voluntarily with an understanding of the
nature of the charge but without realizing that his conduct does
not actually fall within the charge.” United States v.
Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007).
3
“It is ‘well settled that a defendant may raise on
direct appeal the failure of a district court to develop on the
record a factual basis for a plea.’” United States v. Ketchum,
550 F.3d 363, 366 (4th Cir. 2008) (quoting United States v.
Mitchell,
104 F.3d 649, 652 n.2 (4th Cir. 1997)). In making a
Rule 11(b)(3) determination, the district court possesses wide
discretion and is not required to replicate the trial that the
parties sought to avoid or to rely only on the Rule 11 plea
colloquy, but may conclude that a factual basis exists from
anything that appears on the record.
Ketchum, 550 F.3d at
366-67; see also United States v. Martinez,
277 F.3d 517, 531-32
(4th Cir. 2002) (explaining that a sentencing court may consider
the presentence report (“PSR”) as a source of the factual basis
to establish the crime, so long as the PSR is made part of the
record on appeal); United States v. DeFusco,
949 F.2d 114, 120
(4th Cir. 1991) (noting that Rule 11 does not require the
district court to establish through its colloquy that a factual
basis exists for the plea).
Here, the PSR included a summary of Michael Roy
Essex’s statement that Torriente was involved in the scheme to
transport cocaine, that he introduced Essex to other members of
the conspiracy, and that he profited from the conspirators’
cocaine sales. In addition, the PSR included circumstantial
evidence further supporting the factual basis, specifically that
4
Torriente paid for a hotel room during a drug-related trip and
that digital scales were found in his home. In fact, at the
hearing on Torriente’s motion to withdraw, counsel admitted that
there was a factual basis when she noted that Essex “put Mr.
Torriente [as] a primary player in the drug transaction that he
was involved in.” This evidence, combined with Torriente’s
admissions that he knew the purpose of the trip, are sufficient
to establish a factual basis. Accordingly, we find that there
was no Rule 11 error when the court found a factual basis for
Torriente’s plea.
II.
Torriente next argues that the district court violated
Rule 11 by misstating the elements of the conspiracy charge.
According to Torriente, the district court’s recitation of the
elements confused the crime of possession with intent to
distribute with the charged conspiracy. The elements of a drug
conspiracy are as follows: (1) an agreement to violate the drug
laws existed between two or more persons, (2) the defendant knew
of the conspiracy, and (3) the defendant knowingly and
voluntarily became a part of the conspiracy. United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). Torriente’s
indictment specifically alleged that the conspirators agreed to
5
violate the drug laws by possessing with intent to distribute or
distributing five kilograms or more of cocaine and marijuana. 2
Our review of the record discloses that the district
court’s description of the elements of the offense sufficiently
matched the charged crime. In fact, Torriente was informed of
his crime in more specificity than the bare bones conspiracy
elements. The court correctly, but unnecessarily, explained
that he could be held responsible for the conspiracy’s actions
whether he directly participated in the distribution alleged or
whether the distribution was merely foreseeable to him and
within the scope of his agreement. See United States v. Brooks,
524 F.3d 549, 557-58 n.16 (4th Cir.) (noting that acts in
furtherance of a conspiracy are attributable to all the
conspirators when those acts are reasonably foreseen as a
necessary or natural consequence of the unlawful agreement),
cert. denied,
129 S. Ct. 519 (2008). To the extent the court
stated the elements in more specific detail than required or
outlined in the indictment, or even if the court’s description
described more proof than required by law, the court also
covered all the elements of a conspiracy. Torriente’s assertion
2
The district court misread one of the words in the
indictment during the Rule 11 hearing, essentially stating that
the Government had to prove that the conspiracy distributed
cocaine. However, this mistake increased, rather than
decreased, the burden on the Government.
6
that he would not have pleaded guilty had the court provided
less detail or stated that the Government’s burden was easier is
illogical. Accordingly, we find no reversible error. 3
III.
Torriente contends that his plea was not
constitutionally valid because it was not voluntary or
intelligent given the alleged errors addressed above, as well as
the fact that Torriente was never actually asked to enter a
plea. The standard for determining whether a guilty plea is
constitutionally valid is whether the plea represents a
voluntary and intelligent choice among the alternative courses
of action open to the defendant. Burket v. Angelone, 208 F.3d
172, 190 (4th Cir. 2000). In applying this standard, courts
3
Torriente also contends that the district court erred by
failing to mention marijuana in its description of the elements,
even though it was charged in the indictment. However, when an
indictment charges in the conjunctive several means of violating
a statute, a conviction may be obtained on proof of only one of
the means. United States v. Simpson, 228 F.3d 1294, 1300 (11th
Cir. 2000). Thus, again, the district court’s failure to
mention marijuana inured to Torriente’s benefit. While it would
have been more correct to state that the Government had to prove
that either cocaine or marijuana was involved in the conspiracy,
Torriente pled guilty after hearing the court state that the
Government was required to prove cocaine. Any allegation that
Torriente would not have pled guilty had he known that the
Government could prove cocaine or marijuana is frivolous.
7
look to the totality of the circumstances surrounding the plea.
Id.
As discussed above, there was no reversible error in
either the court’s acceptance of the factual basis or the
court’s recitation of the elements of the offense. Moreover,
even were there error, it was not constitutionally significant
because it is clear that Torriente made a reasoned choice to
plead guilty in light of Essex’s expected testimony. Prior to
his appeal, Torriente never expressed any confusion as to the
import of the guilty plea, or the consequences thereof.
Regarding the court’s failure to actually ask
Torriente to enter a plea, Torriente is correct that the record
is devoid of any explicit plea. However, it is clear that
Torriente understood he was pleading guilty, intended to plead
guilty, and believed that he had pled guilty, as did the court
and the Government. In response to the court’s question,
Torriente stated that he was pleading guilty because he was
guilty of the crime. In his motion to withdraw his guilty plea,
Torriente never argued that he had not pled guilty, never
expressed confusion about the guilty plea proceeding, and in
fact, proceeded to attempt to withdraw a plea that he now
contends he never entered. Thus, while the court could have
been more thorough in its colloquy with Torriente, the totality
of the circumstances makes it clear that Torriente pled guilty
8
knowingly and voluntarily in order to avoid a harsher sentence
based on Essex’s testimony. Accordingly, there was no
constitutional error.
IV.
Next, Torriente contends that the district court erred
by denying his motion to withdraw his plea. We review a denial
of a motion to withdraw a guilty plea for an abuse of
discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th
Cir. 2000). A defendant bears the burden of demonstrating to
the district court’s satisfaction that a “fair and just reason”
supports his request to withdraw. Fed. R. Crim. P. 11(h).
In determining whether the trial court abused its
discretion in denying a motion to withdraw a guilty plea, this
court considers the six factors articulated in United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). The factors include,
whether: (1) the defendant has offered credible evidence that
his plea was not knowing or not voluntary; (2) the defendant has
credibly asserted his legal innocence; (3) there has been a
delay between the entering of the plea and the filing of the
motion; (4) the defendant has had close assistance of competent
counsel; (5) the withdrawal will cause prejudice to the
government; and (6) the withdrawal will inconvenience the court
and waste judicial resources.
Id.
9
As discussed above, although Torriente has identified
some questionable areas of the Rule 11 hearing, he has offered
no evidence that his plea was not knowing or voluntary, and he
has not credibly asserted his legal innocence. 4 While there did
not appear to be undue delay, Torriente indisputably had close
assistance of counsel. 5 Finally, the district court reasonably
found that withdrawal of Torriente’s plea would inconvenience
the court and waste judicial resources. Accordingly, there was
no abuse of discretion in denying the motion.
4
Torriente based his motion to withdraw on the assertion
that Essex had recanted his statement implicating Torriente. It
is difficult to believe that Torriente was pleading guilty
solely based on Essex’s allegedly unreliable statement, as
Essex’s incriminating statement was made after he gave a
conflicting statement stating that Torriente was not involved.
Torriente’s assertion that he pled guilty because he feared
Essex would give false testimony against him is undermined by
the fact that he could have cross-examined Essex with his prior,
inconsistent statement. Essex’s recantation (his third
statement) is the only “evidence” Torriente submits in support
of his innocence.
5
After recognizing that this factor weighed in the
Government’s favor, Torriente makes a weak argument that his
attorney misled him into believing he was guilty of conspiracy
merely for getting into the car with his co-defendants. This
claim is raised for the first time on appeal and, thus, does not
affect our determination of whether the district court abused
its discretion.
10
V.
Finally, Torriente contends that a sentence below the
statutorily required minimum would have served the purposes of
sentencing and that the district court erred in failing to
impose a lower sentence. However, “[a] statutorily required
sentence . . . is per se reasonable.” United States v. Farrior,
535 F.3d 210, 224 (4th Cir.), cert. denied,
129 S. Ct. 743
(2008). Moreover, the district court had no discretion to
impose a sentence outside the statutory range. United States v.
Robinson,
404 F.3d 850, 862 (4th Cir. 2005). As such, this
claim is frivolous.
Based on the foregoing, we affirm Torriente’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
11
