United States of America v. Juan Adrian Gonzalez

M. EMILIO Before GARZA PARKER, Judges, Circuit ELLISON*, Judge. District GARZA, Judge: Circuit M. EMILIO (“Gonzalez”) ap- Juan Adrian and sen- conviction his peals guilty-plea with intent possess conspiracy tence in violation of marijuana, to distribute 841(a)(1) affirm §§ 846. We conviction, his sentence vacate for resentenc- the district court remand to ing.

* as, designation. sitting by of Tex- Judge Southern District District

Gonzalez, pursuant written zalez to imprisonment 78 months’ and 5 agreement, pleaded conspiracy years’ supervised release. Gonzalez filed a timely possess marijua- appeal. intent distribute notice of na. The factual plea, basis for the On appeal, Gonzalez contends that he admitted, he, which Gonzalez reflected that did not knowingly and voluntarily waive along Miguel Longoria Tor- Juan his right appeal sentence, to rendering res, agreed to approximately deliver 500 the waiver Because, unenforceable. ac- marijuana of pounds agents. to DEA As cording Gonzalez, to the waiver is unen- of part plea agreement, Gonzalez forceable, he can challenge now the district right waived “the to appeal any sentence court’s enhancements for quanti- imposed within the maximum provided in ty to him attributed and Gonzalez’s leader- conviction, statute of whether on direct ship role determining appropriate to appeal the Fifth Circuit or in a collater- sentencing guideline range. Additionally, proceeding.” al The waiver did not apply Gonzalez maintains that if even we find his to claims of ineffective assistance of coun- valid, waiver appeal of we should vacate prosecutorial sel misconduct. his plea due to the district alleged court’s violations of Federal of Rule Criminal Pro- In the pre-sentencing report, the proba- cedure 11. tion officer determined that Gonzalez was responsible for kilograms 777.01 of mari- A defendant waive his statu juana: kilograms 232.69 marijuana of tory right appeal part to plea of a valid by law seized agents enforcement on agreement if the waiver is knowing and 13, 1999, March kilograms and 544.32 of voluntary. Melancon, United States v. marijuana during negotiations discussed Cir.1992). 567-68 agents. with the Based on the 777.01 kilo- defendant must know right that'he had “a marijuana of grams Gonzalez, attributed to to appeal his sentence and that he was probation officer fixed his base offense giving up right.” that level at 30. The probation officer recom- Portillo, (5th Cir.1994) (internal mended a two-level increase for Gonzalez’s quotation marks and citation offense, leadership role omitted). and three- “It up to the district court to level reduction for Gonzalez’s acceptance insure that fully defendant under responsibility, resulting of in a of- total stands right appeal [his] and the conse fense level of 29. quences Gonzalez’s waiving criminal his- that right.” United tory II, which, category was at Baty, offense level guideline resulted in a sentencing plea agree signed range of 97-121 imprisonment. months’ ment him right informed appeal his sentence and that he waiving would be objected to the quantity of right by that pleading guilty, except under him, drugs attributed to specifically the the circumstances enumerated. inclusion of the kilograms 544.32 of mari- juana, and to proposed leadership ad- Gonzalez avers that his waiver justment. At sentencing, the court district appeal not knowing voluntary be overruled Gonzalez’s drug-quantity and (1) cause objection his counsel’s to the leadership objections. role The govern- (2) waiver during plea colloquy; ment filed a recommending motion a two- prosecutor’s during statement level reduction for Gonzalez’s hearing substantial court routinely district assistance, pursuant 5K1.1, waivers; which the voided such the district approved. court The court sentenced Gon- court’s statement at sentencing that he court district Third, sentencing, the First, Gonza- his sentence. appeal could he had erroneously advised Gonzalez his reservation expressed lez’s counsel Never- his sentence. appeal to the right provision appeal-waiver cerning the no time has at that theless, confusion appeal an preclude it would extent waiver. sentencing validity from on the departure effect upward Melancon, (holding that counsel time did his F.2d at 568 But at no guidelines. at sen- provision misstatement appeal-waiver court’s object to right to right it waived Gonzalez’s the defendant’s regarding tencing the basis determination waiver district court’s whether the appeal the no effect on had appeal range. know- guideline voluntary applicable appeal right record the Accordingly, because ing). correct Second, although Gonzalez appeal waiver of that Gonzalez’s shows comment made the prosecutor the that the voluntary, we find informed and strikes regularly “Judge Justice drug-quan- of the precludes review waiver the waiver on through provision this Gonzalez adjustment issues and role tity judge who magistrate the appeal,” appeal. raises clearly explained hearing plea ducted the was a contract plea agreement the that his next contends Gonzalez re- government the and between Gonzalez district be vacated because plea should all minds on meeting of the quiring of Criminal Rule Federal court violated mag- response In major elements. the dis maintains that ll.1 He Procedure indi- counsel defense explanation, istrate’s explain the adequately failed trict court he his concern despite cated that provi appeal-waiver of the ramifications assistance ineffective rendering would be ultimately court that “had sion plea agree- entering into by of counsel agree plea written that his [him] advised appeal upward allowed no ment that appealing his him from would bar ment sentencing guidelines, from the departures willing to sentence, have been might not he “bargain” offered wanted the still Gonzalez The record plea.” his through with go repre- then government. Counsel In of the ex light this contention. belies was a meet- there the court that sented to at the time waiver tensive discussion pro- appeal-waiver of minds on the ing aware of plea, he was of Gonzalez’s being whether vision, only issue with the Furthermore, after even Moreover, provision. it. would enforce court during waiver the discussion conclud- discussion appeal after the waiver he was stated that hearing, Gonzalez plea ed, again court asked district waiving right his he was aware that was waiv- that he whether he understood plea part sentence as appeal He his sentence. right appeal ing his indicates Again, record agreement. answered, also indicated “Yes.” Gonzalez was informed waiver that Gonzalez’s plea agreement signed that he had voluntary. freely voluntarily. counsel, See was harmless. this error concerning dis- or his allegations

1. Gonzalez’s 11(d); v. John- United States comply with Fed.R.Crim.P. Rules failure trict court’s Cir.1993) (en 296, son, 301-03 11(d) (e)(2) exis- The are without merit. banc) 11 for (reviewing of Rule violations in plea agreement was disclosed tence error). that Gon- ensured The court harmless Although court failed open court. agreement, which signed zalez had Gonzalez's specifically whether to determine Gon- between from discussions prior had resulted plead from willingness guilty resulted government. zalez and the government and him between discussions government, 841(b) “in the interest provisions triggered candor,” notes that the quantity mari specified drug quantity ranges. juana involved the offense not al United Doggett, 160, States v. indictment, and, leged therefore, Gonzalez’s sentence of impris 78-months’ Gonzalez’sindictment fails to al onment violate the rule announced lege a drug quantity. In light of that 466,

Apprendi v. New Jersey, 530 U.S. 120 failure, 841(b)(1)(D) sets forth the statu 2348, (2000). S.Ct. 147 L.Ed.2d 435 Gon tory maximum to which Gonzalez may be zalez did not raise the issue.2 sentenced, which due to the absence of a may raise an issue sponte We sua “even prior (or felony drug years conviction is 5 though it assigned is not specified,” months). Garcia, “plain apparent.” when error is Cir.2001) 599-600 Pineda-Ortuno, 105 (§ 841(b)(1)(D) is the “default provision” (5th Cir.1992) (citing Silber v. United for a charge involving marijuana). States, 717, 718, 370 U.S. 82 S.Ct. The maximum term of supervised release 8 L.Ed.2d 798 and United to which Gonzalez can be sentenced is 3 Adams, (5th 830, v. States 634 F.2d 836 years. 841(b)(1)(D) (es § See 21 U.S.C. 1981)). Unit A January Further, Cir. tablishing only a statutory minimum of 2 government, credit, when to its calls years’ supervised release); 18 U.S.C. issue, our attention to Apprendi an “fair 3583(b)(2) (default supervised release ness[,] as judicial well as economy[,] dic statute providing a term supervised of re tate issue,” that we ... par address th[e] lease of “not more years” than three for ticularly when it would be in a “raised felonies); (defin Class D 18 3559 subsequent proceeding.” habeas Id. We ing a Class D felony an offense for an review issue not raised below which the maximum imprisonment term of error, id., “(1) plain see which is defined as is less than years ten equal to or (2) error; (3) that is clear or plain; that greater than years). five Gonzalez’s sen affects rights; defendant’s substantial tence of 78 months’ of imprisonment term (4) seriously fairness, and affects the and 5 years’ supervised release obviously integrity or public reputation judicial the statutory exceeds maximum and as proceedings.” United States v. Vasquez, such his sentence is plainly erroneous. (5th 456, Cir.2000). 216 F.3d 459 We find also that the additional 18 months’

“Other than the fact of a prior con imprisonment 2 years’ and supervised re viction, any fact that increases the penalty lease affects Gonzalez’s rights. substantial beyond crime the prescribed Cabral-Castillo, statuto 35 ry maximum 182, (5th Cir.1994) must be jury submitted to a F.3d 189 (finding that proved beyond and a reasonable doubt.” defendant’s substantial rights were affect 490, Apprendi, 530 U.S. at 120 at S.Ct. ed where court calculated a 2362-63. Apprendi requires the govern sentencing range of 188 to 255 months allege drug ment to quantity in the indict on based an erroneous criminal history ment, submit it jury, to the and it prove category, range when the using the correct beyond a gov reasonable doubt when history criminal months, 151 to 188 ernment pursuant seeks sentence to the though even the defendant was sentenced Judgment 2. entered Gonzalez's case S.Ct. 2348. at brief was filed No- 15, May Apprendi 2000. 17, was decided June vember 2000. 26, 466, Apprendi, 2000. 530 U.S. at 120 ju contrary, our Quite to the prejudice. Glover imprisonment); months’ to 188 cf. amount suggests risprudence 198, 121 S.Ct. States, 531 U.S. v. United sig Amendment jail time has Sixth actual (2001) (“Authority 696, 148 L.Ed.2d ). Moreover, find that we nificance. amount a minimal suggest not does to correct of our discretion exercise constitute jail cannot time additional elsewhere have We is warranted.3 error Apprendi claim analysis anof to our relevant are two that there reveals precedent 3. Our drug allege fails the indictment (1) in which where Apprendi claims: subsets conclu- acknowledge that this We quantity. jury quanLitybut alleged drug indictment han- with other circuits’ see, puts at odds element, us sion as to Green, instructed was not See United dling Apprendi cases. of similar 433, 246 F.3d v. e.g., States United (1st Duarte, 62 and 63 246 F.3d v. States (5th Cir.2001); where Cir.2001) although indictment (finding that see, e.g., drug quantity, United allege failed Apprendi drug quantity allege failed 211, 212 Vasquez Zamora, v. States — occurred, defen- sentencing error had correct (5th declined to We have rights had not been affect substantial dant’s errors, lat corrected the but have Lheformer "overwhelming” evidence because Miranda, v. Compare States United ter errors. distributing than more "complicity in Green, Cir.2001); (5th 434, 445-46 collecting 1,000 marijuana” kilograms of DeLeon, 437; v. States United circuits). diver- This from cases other similar Cir.2001); and United 597-98 F.3d prior the case at approach gence in existed 583-84 Slaughter, 238 F.3d Here, why explicating merely we are bar. Cir.2000); F.3d at Vasquez-Zamora, 253 the indictment in which cases our McWaine, 212; States Cir.2001). we have corrected allege quantity fails 874-75 to evi- reference Apprendi error without unstated, driving our decision Though stipu- or the defendant's at trial dence offered the second in errors correct those See, Vasquez-Zamora, F.3d e.g., 253 lations. jurisdiction to district is the court’s subset Meshack, 212; v. States at 556, United The indict- impose defendant's sentence. the Cir.2000) (5th reh'g 244 amended 557 sufficient, cases, though these ments in (5th 367 F.3d drug which no only charge an offense for not faults us special concurrence court district stated. The quantity need be purpose enough to the notice paying heed defendant the jurisdiction to sentence has the the notice-fo- by Under indictments. served the less than equal to or only to a sentence by con- special the analysis offered cused currence, the offense that statutory of the maximum imposed would be the sentence charges. See United indictment the in- determining what offense in decisive Cir.1997) (5th Fletcher, 193 charging. construed is to be dictment constructive error in (finding harmless case, result, Gonzelez's in this because As a vacating sen- of indictment 841(b)(1)(B) amendment §by is one authorized sentence statutory the maxi- it exceeded because 841(b)(1)(D), tence analysis us asks § not charged in the indict- the offense mum of in- assumption the begin with the to States, ment); F.2d 503 Packnett charge un- an intended offense dictment (5th Cir.1974) (noting that if the 841(b)(1)(B). analysis 950 also re- § This der felony of- sentenced to the had been quires defendant use of evidence extrinsic the allege the missing failed to indictment fense the the supply where otherwise indictment charged Here, offense the would make Gonzalez's indictment element that element. conflicting statutory have to be vacat- felony, citations —one a sentence would two the tains ed). 841(b)(1)(D) court the Conversely, the lacks the other § district exceeding contrary impose what sentence jurisdiction to And alleged special concur- the offense in the statutory parenthetical maximum included of indictment, imposing a in indictment's as it here statement did rence's charged imprisonment heading alleges and a "Gonzalez 78 months' sentence of (100 841(b)(1)(B) kilograms violating More- years' supervised release. of term 5 over, upon might suggest marijuana)” jurisdictional nature or more because read, no al- contains quick the indictment error, support- at trial evidence adduced the in- drug Because by legation quantity. quantity stipulations ing drug made allegation of an contain does not not dictment drug quantity are as to the the defendant

361 corrected sentences that exceeded the to the relevant statutory maximum); statutory maximum an Meshack, even smaller Cir.2000) than margin margin pres of difference amended on reh’g 244 F.3d Vasquez-Zamora, ent this case. See Cir.2001) (same). Therefore, we vacate (finding 253 F.3d at 212-14 Apprendi er Gonzalez’ssentence. ror and vacating sentence of 65 months’ reasons, For the foregoing we AFFIRM an zda 5 term

imprisonment year super conviction, VACATE his sen- release, where statutory vised maxi tence and REMAND for resentencing. mum was 60 imprisonment months’ and a release). year supervised term of Addi PARKER, ROBERT M. Judge, Circuit tionally, correcting the error does not re specially concurring: quire a new merely trial but resentencing of Gonzalez in accordance with 21 I concur specially to note some troubling 841(b)(1)(D). McWaine, aspects 243 F.3d at of our developing Apprendi juris- 875 (remanding for resentencing pursuant prudence. 1996), quantity, special Fitzgerald concurrence's Cir. give does not credence to analysis requires stipu us to viewing use Gonzalez's light sentencing lation to resolve the permit citation conflict and nor does it us to use evidence extrinsic supply missing drug quantity otherwise to the indictment conflicting to resolve cita allegation. analysis While this accounts for supply tions or otherwise elements not includ notice, Instead, it purpose contravenes another ed in the Fitzgerald indictment. ad grand indictment serves: assurance that the question dressed of whether a factual

jury probable found cause allegation for each of the contained in an indictment’s head elements of an offense. United ing States v. Ca could be determining considered in brera-Teran, Cir. whether the indictment was sufficient. See 1999). subsequent Events Fitzgerald, to the issuance (holding 89 F.3d at 222 that the indictment do allegation little to inform us of contained within an indictment's the elements of an caption offense for which the can be used to "cure a defect in the cause; instead, grand jury probable indictment"). body found Nor does Fed. R. 7(c)(3) the indictment itself is the sole record of permit Crim P. analysis suggested grand jury's probable findings. concurrence, special cause It pertains as it us, purpose is this spite caused has in erroneous citations where the indictment oth notice, the absence of a reject alleges lack of to erwise the elements of the offense. attempts See, facially States, to cure e.g., deficient indict Theriault v. United or, 212, (5th 1970) ments with evidence adduced at trial (applying 213 n. 2 in Cir. Rule context, guilty plea 7(c)(3) with a criminal to find error harmless where the in Deisch, complaint. See United States v. 20 transposed dictment the numbers in the statu (5th 1994) F.3d 145 tory provision Cir. overruled on and the cited elements of the grounds by indictment). other Doggett, offense set were in the out (5th Cir.2000) (the F.3d 230 165 Ultimately, in it is if we reason back- grand jury dictment assures that the found sentencing wards and assume that was with- probable cause for each element of the of out error do we have to consider whether the and fense is reflected "the rules that the plea interpreted indictment and the can be allege failure of the to indictment all ele liberality encompass with sufficient to face, ments of the by offense not be cured sentence. alleges On its the indictment trial, 841(a)(1) evidence or by (b)(1)(D). nor a instructions an offense under and particulars''); Cabrera-Teran, bill of 168 The drug quantity allegation absence of a at 144 (reviewing F.3d comports maximum lib with the pro- citation to the default erality government's vision, rejecting attempts conflicting rather than with it as the Thus, use complaint to criminal special and defendant's suggests. concurrence the case prior hearing review of records from at bar is best viewed as one in which the insufficiency). error, facial cure plea indictment was without Although error, special concurrence relies on without and the error occurred at sen- (5th Fitzgerald, States v. tencing. 89 F.3d 218 362 (5th brera-Teran, 143 & n. 5 F.3d a entered sufficient, an indictment (over “To be pounds over

stipulated of the material element each allege an must which is marijuana, kilograms) not, charge offense; it if it fails does the enhanced trigger amount sufficient “An indict Id. at 143. that offense.” There §of penalties consti an offense charge failure ment’s drug quanti about any dispute never Id. Howev defect.” jurisdictional I tutes argument, no makes ty. Gonzalez first for the er, objection is raised fairness, if an integrity none, that the perceive does not appellant and the appeal1 time on proceedings judicial public reputation be is to the indictment prejudice, in assert imposed the sentence by impugned is it liberality finding reasons, with maximum my read it is For these this case. it defective is so sufficient unless to correct decline should that we position construction, it fails to reasonable indictment. in Gonzalez’s error plain the defendant for which charge the offense v. However, recognize that United I (citing United States Id. is convicted. Cir. Vasquez-Zamora, 218, 221 Cir. F.3d Fitzgerald, 89 2001) remand requires controls 1996)). no offers Vasquez-Zamora resentencing. concerning why pre-Apprendi

analysis liberality” the “maximum In addition to undisputed involving guilty pleas posture procedural dictated review our under be remanded should amounts case, of Feder- I am mindful present of the un I remain analysis. error plain classic 7(c)(3), Procedure al Rule of Criminal constitution path that such convinced in the citation error which states that necessary or wise. ally allegedly violated statutory provision of the for dismissal grounds not be set “shall analysis separate In a related of a convic- ... or for reversal indictment majority de- panel out footnote not mis- or omission did tion if the error in Gon- Apprendi error that the termined prej- to the defendant’s the defendant court of lead deprived the zalez’s indictment any error I therefore view udice.” would above him jurisdiction to sentence Rule 7’s through statutory the de- citation under maximum sentence allowed harmless error lens. drug statute. provision fault Longoria, 259 also United States body of Gonzalez’s Cir.2001)(reaching the same quantity “a of mari- charges possession code- Longoria, clusion allegation juana,” omitting same indict- under the prosecuted fendant previously marijuana. We have amount of ment). an indictment considered whether a amount body the allege fails to indictment, which is right the An felony out of a misde- Amendment, necessary to make by the Fifth guaranteed nonetheless suffi- (1) drug charge is that meanor to ensure purposes: serves three make the heading if the caption cause to cient probable finds grand jury the Fitzgerald, 89 necessary allegations. each ele- that Gonzalez committed believe body Fitzgerald, In (2) at 222. offense; against to protect ment of the concerning silent indictment was notice of give jeopardy; double allegedly drugs the defendant amount of v. Ca- charged. the offense United not forfeit- any lime and are may raised at preserved in tire be Although this issue was not 1. timely parties' failure to assert court, ed of review plain error standard trial at 221 n. 1. Fitzgerald, 89 F.3d objection. errors inapplicable jurisdictional because is stated, possessed, caption “Viola- panel Neither the opinion nor Longoria, case, tion: 21 U.S.C. 844 Possession of over 5 companion whether, considers grams cocaine base.” Id. 221. We under the liberality maximum rule and the caption held that the cured defect in analysis by Fitzgerald, dictated the incon- indictment, body in- when the sistencies deprived Gon- dictment was read with maximum liberali- zalez of the notice to which he is constitu- ty. at 222. tionally Id. I entitled. write separately to note my disagreement with panel’s fail- The indictment in this case less clear ure to consider question of the district than the one we in Fitzgerald. examined jurisdiction court’s under clearly applicable Here, the heading reads [VIO: COUNT precedent my as well as disagreement with 841(a)(1) (b)(1)(B) ONE: & & its jurisdiction. conclusion regarding 846, CONSPIRACY TO POSSESS W/IN sum, In I concur specially, agreeing with TENT TO DISTRIBUTE MARIJUANA]. panel majority that our circuit’s prece- However, the caption reads: “[21 U.S.C. dent remand in dictates this case. 841(a)(1) (b)(1)(D) & & 846]”[sic]. caption’s reference to the provi “default” 841(b)(1)(D)

sion, requires proof marijuana amount conflicts

allegation in heading that Gonzalez is 841(b)(l)(B)(100

charged with violating kil

ograms marijuana) or more of and the

silence in the body of the indictment.

Reading the indictment with maximum lib UNITED America, STATES of erality, I would hold that the indictment Plaintiff-Appellee, sufficient advise Gonzalez that he subject punishment for possession Miguel LONGORIA, Defendant- kilograms of 100 marijuana. or more of Appellant. nothing There is in the record before us that indicates that Gonzalez was mislead No. 00-50405. eiror. See United States Appeals, States Court of Johnson, Fifth Circuit. Cir.1973)(holding of an purpose indictment is to inform the accused of the July 2001. charges against nature of the him with such specificity particularity that the

accused prepare adequate de

fense). He was aware when he was indict

ed when he entered his facing he was the penalty range set fact,

out in In correct

statutory provision was referenced on the Therefore,

face of his indictment. I would

hold that the indictment was sufficient to

bestow court with jurisdiction

to impose Gonzalez’s sentence within the

statutory range set forth in

Case Details

Case Name: United States of America v. Juan Adrian Gonzalez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 19, 2001

Citation: 259 F.3d 355

Docket Number: 00-50406

Court Abbreviation: 5th Cir.