United States v. Juan Martinez, A/K/A Jesus Garcia, A/K/A Roberto Gonzalez

reach, court need to let alone what might merely

thеir outcomes be. We rule “we cannot reach these conclusions as sparse.”

a matter of law on a record this Kodak, 486, 112

Eastman 504 U.S. at S.Ct.

2072.

V. reasons,

For all of these we vacate the

judgment of the district court granting

summary judgment, damages, and an in

junction Continental, in favor of and re proceedings

mand the case for further con opinion.

sistent with this leave to the “question

district whether on effectively

remand it can assess” the al

leged quick-look restraint a modified

analysis, or whether it must undertake “a analysis.”

more extensive rule-of-reason Dental, 8, 119 526 U.S. at 768 n. California 1604; S.Ct. see also Dental v. California Comm.,

Federal Trade Cir.2000) (on

2& n. remand from Dental,

California 935). 1604, 143L.Ed.2d AND

VACATED REMANDED. America,

UNITED STATES

Plaintiff-Appellee, MARTINEZ, Garcia,

Juan Jesus a/k/a Gonzalez, Roberto

a/k/a

Defendant-Appellant.

No. 00-4245. Appeals,

United States Court of

Fourth Circuit.

Argued Sept.

Decided Jan. Durham, Craig Pooley,

ARGUED: Paul Carolina, North Appellant. for Clifton Barrett, Thomas Assistant United States Attorney/Chief, Division, Criminal Greens- boro, Carolina, North Appellee. for ON Holton, Jr., BRIEF: Walter C. United Attorney, Greensboro, States North Car- olina, Appellee. LUTTIG, TRAXLER,

Before and KING, Judges. Circuit by published Affirmed opinion. Judge KING majority opinion, wrote the in which Judge joined. TRAXLER Judge LUTTIG a concurring opinion. wrote OPINION sued a superseding indictment a month later, changed which only Count One KING, Judge. Circuit named two additional co-conspirators. Appellant challenges Juan Martinez indictment, superseding The which is the convictions and sentence in the Middle (the operative charge appeal in this “In- District of North Carolina on one count of dictment”), made no changes substantive conspiring to distribute cocaine and mari- eight chаrges to the against levied Mar- juana, § violation of 21 U.S.C. tinez. money laundering, on four counts of 29, 1999, On November the Government 1956(a)(1). violation of 18 Mar- U.S.C. Martinez entered into a agree- tinez makes two ap- basic contentions on ment, which was filed with the court on first, court, peal: the district four day. that same plea agreement pro- contexts, separate committed reversible (1) vided, inter alia: that Martinez would and, accepting error in guilty pleas, plead guilty conspiracy to the charge second, that the statute which forms the (Count One) separate and to four conviction, object of his (Counts money Nine, laundering Ten, in light U.S.C. is unconstitutional (2) Twelve, Fourteen); that Martinez Apprendi Jersey, v. New (a) One, faced on Count a minimum sen- (2000). S.Ct. 147 L.Ed.2d 435 years’ imprisonment, tence of ten a maxi- conclude that these contentions are with- life, possible mum sentence of and a maxi- merit, out and we affirm. (b) possible million; mum fine of $4 money each of the laundering charges, a I. possible maximum twenty sentence of 25, 1999, May Martinez, years’ On imprisonment who was and a pos- maximum (3) $500,000; that, also known as Roberto Gonzalez and Jesus sible fine of upon accep- Garcia, indicted, along was with by five oth- tance the court of pleas ten- ers, charges relating Martinez, on various drug by to a dered the Government would distribution scheme in oppose North Carolina and not Martinez’s motion to dismiss elsewhere. The indictment money contained six- the three laundering other counts (Count counts, eight teen against of which him (thereby reducing expo- One his Fourteen) plus Eight through Counts prison by sixty years were sure to a total of against One, Martinez. In exposure Count Martinez to fines the sum of $1.5 (4) million); charged and his co-defendants were the Government conspiring, § violation of 21 U.S.C. would recommend to the district court a to commit offenses involving controlled decrease in Mаrtinez’s offense level substances, is, 3El.l(b)(2) pursuant § the distribution of co- additional level marijuana, Guidelines, caine and in violation Sentencing of’ if Martinez 841(a)(1). § remaining qualified U.S.C. The 2-point seven for a decrease in offense charges against 3El.l(a), § Martinez related viola- level under and if his offense statute, 3El.l(a) money laundering tions of the prior operation § 18 level to the ,1 1956(a)(1). § U.S.C. grand jury is- was or greater 1(a) § Sentencing Pursuant 3E1.1 of the in offense level under 3El. and who has Guidelines, a defendant can receive a reduc- sufficiently committed a severe crime will re- acceptance respon- tion in offense level for ceive an additional decrease in offense level if 3El.l(b), sibility. Under a defendant who gave types it is determined that he certain already qualified has for the initial decrease plea proceeding quantity conduct- that the of controlled substances Rule 11 At the 29, 1999, ac- ed on Nоvember involved in One would be deter- Count fully the court he had knowledged to sentencing. mined at Martinez acknowl- his counsel both the various discussed court, oath, edged to the under his under- him and the terms of his charges against standing of all these matters. Martinez also acknowl- plea agreement.2 concluding pro Before the Rule that he understood the edged to the court ceeding, inquired the court whether the him; charges against he nature of present a Government intended to factual that he the court advised guilty pleas. basis for the When the Gov drugs; and of alcohol or he the influence requested ernment the factual basis competent plead.3 that he was asserted until because it was be withheld 11(c), provisions of Rule Pursuant to the lengthy, request.4 to its court acceded that, court informed Martinez on the 3, 2000, On March the district court One, charge in Count he faced sentencing proceed- conducted Martinez’s minimum mandatory sentence of ten proceedings, ings. these the Govern- potential maximum

years’ imprisonment, objection no to the Presen- ment made life, imposition and the of a sentence of (“PSR”) of Probation Report tence up to million. He was further fine of $4 Officer, and Martinez did not contest the court that the maximum informed drug quantities determined in the PSR. money possible on each of The PSR determined that Martinez was twenty years’ im- laundering charges was accountable, One, 10,000 under Count $500,000. plus a fine of Mar- prisonment 317,- grams hydrochloride of cocaine understanding acknowledged tinez grams marijuana. Martinez also on the penalties he faced agreed history upward to the criminal guilty pleas. of his against by him virtue departure in the PSR. The recommended Martinez that it court also advised district court found that an offense level by plea terms of his was not bound the history of category of 35 and a criminal Government, and that agreement with the then applied IV to Martinez. The court case rested sole- disposition the final of his to 235 months’ im- sentenced Martinez informed ly the court. The court (nineteen years and seven not, prisonment did in Martinez that the Indictment months) plus years’ supervised re- One, mar- five allege specific amounts of Count cocaine, charge. He was ijuana conspiracy or and it advised Martinez lease on the law, by investiga- possible penalty provided in the maximum assistance to the Government prosecution any own misconduct. including special parole tion or of his the effect of supervised release term.... by governed provi- the proceedings 2. Plea are the Federal Rules of Crim- sions of Rule of 11(f) "[njotwithstanding mandates that 4.Rule inal Procedure. acceptance plea guilty, of a of the court judgment plea upon not enter a such should 11(c) follоwing provides "Ad- 3. Rule for satisfy making inquiry as shall it without such plea proceedings: vice to Defendant” in plea.” that there is a factual basis for plea accepting Before or nolo judgment after Because is not entered until contendere, address the de- the court must finding sentencing, defer the of a a court personally open court and in- fendant in factual basis for the until time. of, and determine that form the defendant Mitchell, 649, understands, following: the defendant Cir.1997). (1) charge to which the the nature of the offered, mandatory plea is minimum law, any, penalty provided by and the years’ Accordingly, to serve three su- such sentence-enhancing also sentenced facts pervised on each of the four charged indictment, release must be tried to money laundering charges, to run con- jury, proven beyond a reasonable imposed for currently with the 490,120 doubt. Id. S.Ct. 2348. Prior to conspiracy.5 plea agree- Pursuаnt to the Apprendi, numerous federal and state ment, granted Martinez’s mo- the court statutes, 841, including § 21 U.S.C. had remaining charges tion to dismiss the enacted sentencing provisions been him, is, against Eight, Counts Elev- that allowed a court to increase a defen- en, and Thirteen of the Indictment. (such dant’s sentence on the basis of facts as, 841, in the case of drug quantity) later, 9, 2000, days

Six on March Mar- by found a preponderance the court pro tinez filed in the district court a se the evidence. motion, “Motion to entitled Withdraw Counsel,” in which he indicated dissatisfac- In the of Apprendi, wake which court-appointed tion with the work of his case, prior was decided briefing lawyer, requested which he appeal.7 altered the nature of his lawyer appointed appeal new be for the He now asserts a total challenges of five pro his case. This se motion was deemed sentence, his convictions and four of whiсh by the district court to constitute a notice relate to his Rule 11 proceedings. His motion, In appeal.6 Martinez indi- final contention is a constitutional chal challenge cated an intention to his sen- lenge to 21 U.S.C. 841. Martinez first tence on basis of mistakes in the PSR asserts that the errors affected his the calculation of his sentence under plea agreement, decision to enter into his Thereafter, the Guidelines. on June and he maintains that he would not have Supreme when the Court rendered agreement into the if the entered district in Apprendi Jersey, its decision v. New properly pro court had conducted those U.S. 147 L.Ed.2d 435 ceedings. Specifically, Martinez maintains (2000), provided Martinez was with an ad- the district committed Rule appeal. Apprendi, ditional basis for (1) incorrectly informing error him facts, ‍‌‌​‌‌​​‌‌‌‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​‌‌​​​​​​‌‌​‌​​‌​‌​‍Supreme any except Court held possible convictions, sentence on the prior punish- that increasе the (2) One; charge failing proper in Count beyond ment an offense the maximum ly him in advise of the elements of the con criminalizing authorized the statute (3) “by spiracy charge; failing to inform him conduct constitute definition ‘elements’ that, separate legal Apprendi, of a offense.” if the recommendation of 10, 530 n. accepted by U.S. 483 120 S.Ct. 2348. the Government was not court, determining appeal 5. The after filed was on Martinez’s behalf on ability 20, pay, impose lacked the did not a fine March on him. Apprendi 7.Martinez is able to raise issues on appeal, 6. As a notice of Martinez's of motion newly appeal declared because constitutional 9, 2000, pre-mature March because applicable pending rules are to criminal cases judgment did district court not enter its until Kentucky, appeal. on direct Griffith 16, 4(b)(2) March 2000. Under Rule of the 314, 322-23, 708, U.S. 93 L.Ed.2d Procedure, Appellate Federal Rules of howev- (1987). previously Wе have held that er, appeal notice of filed after the court "[a] newly Apprendi constituted declared consti- decision, sentence, announces a or order —but Sanders, rule. United States v. tutional entry judgment before the or order—is 139, (4th Cir.2001). treated as filed on the date of and after the event, entry.” any a second notice of (2) (1) occurred, that an that it court, not have cause to with- strate error he would (3) (4) error, plain that the error was failing to establish was pleas; and draw his sub- pleas. Final- material or affected defendant’s for his a factual basis Olano, rights. stantial 507 U.S. at contests his convictions ly, Martinez three 113 S.Ct. 1770. Even when these Apprendi ren- on the basis satisfied, conditions are we retain discre- the substantive dered U.S.C. error, tion whether to correct the which we object of the Count forming statute seriously only should exercise the “error conspiracy, pos- unconstitutional. We One fairnеss, integrity public affect[s] appeal pursuant this jurisdiction over sess judicial reputation proceedings.” of Id. to 28 U.S.C. 11(h), provisions Under the of Rule II. plea proceedings normally in errors are the merits of Before we address evaluated under a harmless error stan contentions, we must consider a Martinez’s 11(h) (“Any dard. variance Fed.R.Crim.P. concerning predicate procedural issue procedures required by this from the rule applicable of review. Because standard rights which does not affect substantial not seek to withdraw his Martinez did disregarded.”); shall be see United States court, guilty plea in we review the district DeFusco, 949 F.2d Cir. alleged 11 errors under the stan Rule 1991). review, harmless error Under error, i.e., applicable dard to forfeited as “[a]ny requirements deviation from the raised for the first time sertions of error govern 11 is Rule reversible unless the appeal. addressing on The courts this ment it was ‘harm demonstrates ” questiоn disagree whether such asser over v. Lyons, less.’ United States plain be under a tions are to reviewed (D.C.Cir.1995). 1321, 1322 n. 1 The harm error standard or a harmless error stan analysis seemingly less error mandated impres question dard. This is one first 11(h) would, course, Rule be more favor circuit, must resolve the sion in our and we plain able to Martinez than the error anal question we consider the substance before 52(b). ysis of Rule We must therefore of Martinez’s Rule 11 claims.8 11(h) supersedes determine whether Rule 52(b) situation, and we must general proposition, As a ascertain whether it mandates harmless course, it is well established forfeited error review for asserted errors plain error is error stan reviewed under proceedings, even those a defendant failed 52(b) (“Plain dard. See er Fed.R.Crim.P. to raise the district court. lights rors or affecting defects substantial they although be noticed were not Several of our sister circuits have ad- court.”); issue, brought they disagree to the attention of the dressed this question United States v. 731- harmless error or whether (1993). 32, 1770, plain analysis governs. majority, 113 L.Ed.2d 508 error A S.Ct. 123 First, review, Sixth, Seventh, plain consisting Under error we notice and Circuits, timely preserved by an error that was not Eleventh have concluded that the 52(b) objection only plain analysis repre- demon- if the defendant can error of Rule Goins, 400, 8. In United 51 F.3d 402 Goins made a motion to withdraw his States v. (4th Cir.1995), plea, applied appeal re did not involve er- we harmless error forfeited errors, view to asserted Rule 11 where the ror. Our decision in Goins therefore has no unsuccessfully sought bearing ap- defendant had to with on the of review to standard be plied plea draw his court. Because here. in district

525 in applied only See be the Rule 11 context. approach. the correct United sents 1304, supporting proposition The 1306 circuits Bejarano, v. 249 F.3d States Driver, plain in (11th Cir.2001); governs, particu- error review v. Circuits, lar (7th the First and the Seventh 767, Cir.2001); 242 F.3d 769 United 11(h) stress that “Rule was added 1, Gandia-Maysonet, 227 5 F.3d States i.e., purpose,” amendment for a narrow it (1st Cir.2000); Bashara, States United to 52 applied was demonstrate to (6th Cir.1994). 1174, 27 F.3d 1178 Two 11 Gandia-Maysonet, errors. 227 courts, however, the Ninth and the District Driver, 6; F.3d at see also 242 at F.3d 770. Circuits, have decided that of Columbia The courts see harmless error review 11(h) error’ standard “the Rule ‘harmless standard, proper particular as the in errors, 11 applies regardless to all Rule Circuit, provisions Ninth contend that the they whether were ever raised before the 11(h) rejection represent of Rule Odedo, court.” States v. district United “McCarthy’s extreme sanction of automat- 937, Cir.1998); 940 see also 154 F.3d ic technical reversal where violations oc- Vonn, 1152, 224 F.3d 1155 United States v. Odedo, cur.” 154 F.3d at 940. Both sides (9th Cir.2000), 1189, granted, cert. 531 U.S. positions to this their debate buttress (February 149 L.Ed.2d 102 S.Ct. references structural considerations. 26, 2001); Lyons, 53 F.3d at 1322 n. As contend, The and First Seventh Circuits below, еxplained join majority example, employing the traditional plain analysis conclude that error is the “ principle, ‘raise or waive’ here as with proper standard for review of forfeited error, other kinds of serves obvious inter- in error the Rule context. judicial economy.” ests of fairness considering question The courts Gandia-Maysonet, They at 5. F.3d on Rule 11 proper standard review standard, by in- plain assert error that, prior to generally agreed issues have ducing properly defendants to raise their 11(h) in promulgation of Rule court, contentions in district will enable con there was some confusion over what the sort of “the district court to build error under Rule 11. stituted reversible understanding that is essential to record in Supreme Court’s decision McCar any noncompliance with Rule the effect of States, thy v. United Driver, They at 11.” also (1969), sever L.Ed.2d 418 had led encouraging note that a defendant that, appeal, on direct al courts to believe move, instance, in to withdraw his the first all violations of Rule constituted revers plea “dispel court will uncertain- district Driver, 770; error. See 242 F.3d at ible really ty about whether the defendant 5-6; at Gandia-Maysonet, 227 F.3d Ode plea, give up the wants to withdraw his 11(h) do, at added 940. Rule plea bargain for the consideration received clarify not be that Rule error should (emphasis trial.” Id. go ... Driver, per prejudice deemed se. contrast, original). the Ninth Circuit 770; Gandia-Maysonet, 227 F.3d F.3d at provisions of Rule 11 stresses that Odedo, 5-6; 154 F.3d at 939. obligations judge, on the not the place defendant; addressing judge’s duty The courts the standard to “com- it is the however, on question disagree, ‍‌‌​‌‌​​‌‌‌‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​‌‌​​​​​​‌‌​‌​​‌​‌​‍review of the rule ply requirements with the 11(h) merely incorporated knowing whether Rule order to assure that the Odedo, voluntary.” of review estab- 154 F.3d at 940. general standards 11(h) that in Rule Ninth Circuit therefore concluded lished Rule or whether The require not “the defendant to unique a standаrd of review to Rule does established judge inquiry to make the rors from other request proceed- errors criminal such, ings: Id. As Ninth specify its form.” proper little reason for the

Circuit sees emphasized It must also be that a harm- to turn on a standard of review whether provision less error has been added to a motion to withdraw defendant made Rule 11 because some courts have read plea. McCarthy meaning as general 52(a) provision harmless error in Rule evaluating competing posi- After these cannot be utilized to Rule tions, plain approach we see the error as Thus, 11 proceedings. the addition of compelling. Significantly, most the Advi- (h) subdivision should not be read as 11(h) sory sug- on Rule Committee Notes 52(a) suggesting ap- that Rule does not 11(h) not be gest that Rule should viewed ply in other circumstances because of establishing unique as a standard of review provision comparable the absence of a Indeed, Advisory for Rule 11 errors. (h) subdivision attached to other rules. began Committee its discussion observ- (emphasis Thus, in original). pursuant Id. (h) ing that makes clear that “[subdivision foregoing analysis, to the we are convinced 52(a) the harmless error rule of Rule is 11(h) that Rule does not require unique applicable Advisory to Rule 11.” Comm. standard of for Rule 11 review errors. 11(h),

527 52(b), errors, type. of ror for all Rule regardless Rule its standard 11 under extent, therefore, pleas the Ninth Circuit easily To the would be set aside more subject that 11 are thus, Rule errors appeal; employing contends the harmless er- because Rule unique a standard of review approach ror would of the frustrate one obligations judge, on the the places 11 central of purposes agreements —the a decision renders such distinction Olano efficiency judicial pro- of increased the untenable. cess.10 upon by the The considerations relied Consistent with these textual and struc- weigh heavily and Seventh First Circuits considerations, tural we to rec- are unable plain approach.

in error As favor ognize exemption an under Rule 11 to the observed, ju those courts the interests of 52(b) analysis Rule for As forfeited error. economy far a dicial are better served such, 11 we will review Martinez’s Rule of review. plain error standard United claims plain error. Driver; (7th 242 F.3d 770 States Cir.2001); Gandia-May Cir.2000). (1st

sonet, III.

Government bears the burden under that Having plain concluded error is the showing error that approach harmless standard, appropriate apply we it will now prejudicial, error was not and in the contentions, to Martinez’s and we must plea proceedings, showing prej context of any determine whether of his claims of usually demonstrating udice means that a require- Rule meet the exacting error pleaded guilty would not have defendant plain doing ments of error review. Before absеnt the error. U.S. at so, however, we will first the im- assess Therefore, applying 1770. decision, pact Apprendi and the error to all Rule 11 harmless standard impact of our related decisions United Government, would mean that the errors (4th Promise, 255 States v. F.3d 150 Cir. cases, in such must demonstrate that a (en 2001) banc), and United States v. Cot- pleaded guilty would have defendant still ton, Cir.2001), on Rule the Rule 11 error. As the absent Seventh Circuit, proceedings particularly Driver, the Circuit observed in record will prosecutions in the context likely sparse to a be defen In this we observe regard, U.S.C. knowledge if dant’s and intentions the de any charged was not fendant does not move to withdraw the offense, drug only with substantive but and the plea, Government therefore would conspiracy, under 21 to dis- U.S.C. difficulty sustaining have substantial burden, tribute controlled substances. Under truly even when the error is harm Driver, such, statute, however, “[a]ny person less. F.3d at 769. As conspires any application attempts mandate of a er- who to commit harmless requires Perhaps argument ror standard of review definition best favor of approach error is that the harmless title to reviewing disregard court to errors Error”, 11(h), implies Rule "Harmless thus, rights; employ- not do affect substantial assertions of 11 error should be treated ing plain contra- error standard would not differently from other contentions of error in 11(h). language plain vene Put of Rule proceedings. point, criminal federal This 11(h) way, provisions do another of Rule however, plain language undercut review; specific mandate standard 11(h), provides which that error "which instead, they review fix a threshold level of rights does not affect substantial shall be dis- be satisfied. must 11(h). regarded.” plainA er- Fed.R.Crim.P. subchapter prendi § offense defined in this shall be to under 21 U.S.C. 841. subject penalties 841(a) to the same as those § We observed that specifically offense, prescribed for thе the commission alia, “prohibits, possession inter of con- object attempt of the or which was the trolled substances the intent to dis- § conspiracy.” 21 U.S.C. 846. Because 841(b)(1) them,” § tribute while “sets forth § under Martinez was indicted 846 for penalties vary to, various according 841(a)(1), § conspiring provi- violate alia, quantity particular inter conspiracy’s statutory object, sions of the Promise, at controlled issue.” substance 841(a)(1), § underlying form the basis of (Wilkins, J., joined F.3d at 156 charge. Widener, Michael, Williams, Motz, Traxler, JJ.) omitted). King, (emphasis A. further pos- noted that “an individual who Apprendi its decision June of sesses with the an intent distribute the Supreme Court concluded that Charles identifiable but unspecified quantity of Apprendi’s rights process due had been [controlled faces a substances]” maximum when, violated because the state trial court sentence of twenty years, and that “[a] by preponderance found a of evidence that exсeeding years may be im- Apprendi criminal activity had committed posed only upon finding an additional purpose, with racially a he biased received specific offense involved a threshold penalty statutory a exceeding the maxi quantity I of a or II schedule controlled mum for which he had the crime for been substance.” Id. We therefore determined Apprendi, convicted.11 U.S. at that “in order to authorize the imposition 120 S.Ct. 2348. The Court then held that “[ojther exceeding a sentence the maximum al- prior conviction, than of a the fact lowable any jury finding specific without a of a penalty fact that increases for a prescribed beyond statutory drug quantity, specific crime threshold maximum a jury must be submitted to quantity and threshold must be treated as an proved beyond a reasonable doubt.” Id. at element aggravated drug of an trafficking 490, 120 The S.Ct. 2348. Court also con Thus, offense.” Id. Promise made clear expose cluded that a “facts that defendant § a constitutes multi-offense stat- punishment to a than that greater other ute, with the being baseline offense drug legally prescribed wise [are] definition a quantity distribution without finding, separate legal ‘elements’ of offense.” Id. 841(b)(1)(C), § multiple aggravat- and with 10, 120 at 483 n. 2348. S.Ct. ed containing offenses the additional ele- particular In our ment of a quantity en banc Promise decision earlier threshold year, apply drugs. Ap- had occasion law, Apprendi pleaded guilty, Jersey's had in New Jer New hate it found crimes court, sey evidence, state preponderance to two counts of second de ''[t]he gree possession committing firearm for an of a unlawful defendant in the crime acted with purpose, degree purpose and to one count of third an intimidate individual or race, possession antipersonnel color, Ap group of an bomb. of individuals because of 469-70, prendi, gender, 530 U.S. at handicap, religion, sexual orientation law, Jersey degree 3(e). Under New ethnicity.” second of N.J. Ann. Stat. 2C:44 court, penalty years’ fenses have a having maximum of ten finding, made such a sen- imprisonment. Apprendi years Id. at S.Ct. 2348. tenced to twelve on one of the however, counts, Apprendi, Prior to the court could two firearms term which exceeded statutory sentence a to an Apprendi, defendant extended term maximum. if, ranging twenty years from ten to 120 S.Ct. 2348. jurisdiction over possessed devel district having Promise decision theWith Thus, only. be- analyzing for that crime framework oped the jurisdiction offenses, possessed was elaborated over that framework cause the court writing for Luttig, Judge conspiracy to violate upon in Cotton. for the Martinez can that a court majority, 841(b)(1)(C), noted panel only it conduct § could for a a defendant ‍‌‌​‌‌​​‌‌‌‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​‌‌​​​​​​‌‌​‌​​‌​‌​‍try nor sentence neither Martinez for proceedings and sentence indictment. Cot charged in the crime not that offense.12 ton, further observed at 404. He must

that, an “indictment Apprendi, B. is every fact which allegation an of contain to be punishment to the legally essential conten now review Martinez’s We 530 U.S. (quoting Apprendi inflicted.” Id. error occurred tions to determine whether 2348) in 15, (emphasis n. S.Ct. at 490 Olano, required by as United States therefore, indictment, is original). An 725, 1770, 123 L.Ed.2d 508 113 S.Ct. U.S. a court jurisdictional”; “mandatory and (1) (1993). must determine therefore We speci of only cognizance take (2) error; it whether whether there was ele every essential fied (3) it affected Mar plain; whether Id. at 404-05. in the indictment. ment (4) whether, rights; and tinez’s substantial in Cotton Luttig thus concluded Judge met, we criteria are if the first three that, charged in an indictment the event to notice the our discretion should exercise specify quan § 841 but did violation of 732, 113 S.Ct. error. try jurisdiction to possessed tity, a court 1770. drug traf under the baseline and sentence 841(b)(1)(C), is, § only, that ficking оffense Martinez’s first examine whether try and sentence properly it could not are valid. Martinez contentions of error charges. Id. aggravated for a defendant in occurred separate errors alleges four (1) that the court proceedings: case, in Promise and In this as potential him of his incorrectly informed Cotton, charged Martinez Count One (2) prop- sentence; court failed to that the 846, § to vio under 21 U.S.C. conspiring, of the elements of erly inform him 841(a)(1). al One Although § Count late (3) that the court failed charge; conspiracy charged with Martinez was leged that that, rejected the Gov- him if it to inform 841(b)(1)(A), § it to violate conspiracy recommendation, he ernment’s drug quantity. of allegation no contained pleas; and guilty could not withdraw charged conspiracy to vio It therefore (4) not determine court did and, that the 841(b)(1)(C), § under the reason late Cotton, for his Promise, of a factual basis existence ing Apprendi of only conferring court clear, thereby on the district Apprendi, aftermath of It in the Cotton, Promise, and the parties that the authority and sentence under to hear erroneously that Count One believed court of 235 months’ sentence offense. Martinez's conspiracy violate charged however, did not exceed imprisonment, 841(b)(1)(A), carries a man- § a crime which violate conspiring to authorized for maximum years' im- datory of ten minimum sentence impris- 841(b)(1)(C), is 240 months' which possible sentence and a maximum prisonment Therefore, any misapprehen- such onment. however, charged the grand jury, life. The respect to error with do not constitute sions conspiracy to violate elements sentence. Martinez’s indictment either 841(b)(1)(C), mandatory which carries no Angle, possible and a maximum minimum sentence Cir.2001) (enbanc). twenty years’ imprisonment, sentence pleas. allegations each of We review these dеciding wide discretion in how ensure in turn. understanding, defendant’s it is essen-

tial that the defendant “receive notice of charge the true nature of the rather than a rote recitation of the elements of the of- contention, first that the Martinez’s (citing fense.” Id. at 117 Henderson v. incorrectly court informed him of the per Morgan, U.S. missible (1976)). case, L.Ed.2d 108 One, is, charge light Count district informed each of post-plea Appren the Court in decision the elements of the charge Count One. di, a one. meritorious Under is no There indication that Martinez was 11(c)(1), obliged the court is to district being unaware that he charged was with any mandatory inform of the defendant conspiring to possess distribute and con- penalty possi minimum and the maximum substances, trolled or that he was unclear by ble for penalty provided law the on what conduct constituted that offense. charged For conspiring offense. under fact, In Martinez’s assertion that he was § 841(b)(1)(C), 846 to viоlate we now not informed of the of conspiracy elements know, in of light trilogy Apprendi, the of is on the based fact that the court failed to Promise, Cotton, that and Martinez faced him drug inform quantity constituted no mandatory minimum an element of the offense. In potential he faced a maximum sentence of regard, point: this he drug misses the imprisonment. twenty years’ Consistent quantity is not an of a element substantive however, plea agreement, with the the dis 841(b)(1)(C) offense, object the incorrectly Martinez, trict court informed Therefore, conspiracy. Count One the prior Apprendi, to that he manda faced a court did not 11 in contravene Rule advis- tory years’ minimum sentence of im ten ing Martinez on the elements of the con- prisonment a possible maximum sen charge. spiracy circumstances, tence of life. In these this advice to potential his sen 3.

tence on One Count was incorrect. There fore, respect. error was committed in this allegation Martinez’s third of Rule error, 11 that he not properly was in formed the failure to accept court’s

Martinez’s second contention the Government’s recommenda 11 plea proceed Rule not tion would constitute grounds with ing, properly that he not of plea informed draw from the agreement, has merit. charge, the elements the conspiracy provisions 11(e)(2), of is Under the of Rule if a without merit. Before a accepting plea agreement involves a recommendation court, plea, “a trial through colloquy 11(e)(1)(B), the Government Rule defendant, must inform the defendant the district court “shall advise the defen of, understands, determine that he accept dant that the court not does charge(s) nature of plea to which the is recommendation or request defendant DeFusco, offered.” United States v. 949 right nevertheless has no to withdraw the (4th Cir.1991) 114, 11(e)(2) F.2d (citing plea.” Fed. (emphasis Fed.R.Crim.P. 11(c)(1)). added).13 situation, Although judge R.Crim.P. has In although this 11(e)(1)(B) 13. A scope recommendation the Government comes within the Rule e such, in- “substantially it was the court failed to clear to Martinez that court mad requirements form” Martinez of the by the recommen not bound Government’s 11(e)(2), dation, required by Iaquinta, him specifically inform Rule as it did not rejection this omission was erroneous. of that recommendation Mar provide cause for would pleas. Although tinez withdraw his allegation final Martinez’s minor departure appears omission be error, district court faded 11(e)(2), held, have have as

from Rule to ascertain that a factual basis existed for courts, that this minimal non other even pleas, no gudty has merit. Under Rule compliance error. United constitutes 11(f), acceptance “[n]otwithstanding the (4th Iaquinta, States plea gudty, the court should not enter Cir.1983); Livor see also United States v. judgment making such without upon (2d si, Cir.1999); United 180 F.3d inquiry satisfy it that such as shad there McCarthy, States plea.” a factual basis Fed. (8th Cir.1996); v. Diaz-Var 11(f). 11(f) essence, In R.Crim.P. Cir.1994). gas, 35 F.3d exactly that the court make clear “ensures laid out the stan Iaquinta, Judge Ervin to, a and what defendant admits whether dard: factuady are to those admissions sufficient district court need not recite While the DeFusco, alleged constitute the crime.” required by the advice verbatim court, however, F.2d The is at 120. 11(e)(2), substantially the it must inform required not to make such determination the de- defendant of determine that it proceedings; at the outset of the Rule 11 the admonition con- fendant understands inquiry sentencing. defer its untd The district court here tained therein. Mitchell, United States v. F.3d it informed merely [the defendants] (4th Cir.1997). The court also need recommendations, by any was not bound gudty plea’s not establish the factual basis an hold that such and we decline to “may through plea colloquy; the court the substantially a de- instruction informs that a factual exists from conclude basis to right fendant that he or she has no appears on the record.” De- anything that if plea his or her the district withdraw Fusco, at 120. 949 F.2d sentencing the accept court does not recommendation. finding review the court’s case, gudty plea court of a factual for for abuse 719 F.2d at 85. In this the basis it of discretion. We cannot find error so advised Martinez that was “not bound reasonably disposi- long the as the district court could [plea] agreement the final responsibility of there was a sufficient fac tion of case is the sole determine that this Mitchell, at In no 104 F.3d the Court.” The court made mention tual basis. case, thereof, ability, inquiry into the factual basis Martinez’s or lack with- the was rejected gudty pleas court the for Martinez’s deferred plea draw his the recommendation; fact, sentencing. sentencing at untd court Government’s Report, adopted the which specifically the court did not address the Presentence litany support- all. As contained a of information Government’s recommendation ‍‌‌​‌‌​​‌‌‌‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​‌‌​​​​​​‌‌​‌​​‌​‌​‍at when, agreement, Sentencing Guide- pursuant particular provision to a the Gov- lines, statement, agree[s] sentencing ernment or not policy “recommend[s] or fac- oppose request particu- for a the defendant's applicable is or is to the case.” tor range, lar sentence or or that ing elements of the five all the to Court in Olano observed that an error will pleaded guilty. which See rights Unit- affect a defendant’s substantial if it Smith, (2d .e., i prejudicial, ed States “[i]t must have affected (“[The Cir.1998) may look proceed court] to an- outcome of district court Olano, for provided ings.” swers counsel the defense U.S. government, presentence report 1770. As noted previously, under Rule 52(b) long

... put so as the factual basis is the defendant bears the record.”); Graves, persuasion 106 burden of respect prej with (10th Cir.1997) (“[W]e (“Rule 52(b) normally note udice. Id. requires 11(f), 52(a) court may ], under Rule inquiry also same kind of [as Rule satisfy requirement the factual basis important one It difference: is the presentence examining report.”). As defendant rather than the Government such, possessed district court adequate who persuasion bears the burden of support concluding for there prejudice.”). was a Thus Martinez guilty pleas. that, factual basis Martinez’s must demonstrate absent the

errors, he would not have entered into his C. plea agreement with the Government. attempting to prejudice, demonstrate Mar The district accordingly required tinez is not to show that either erred in Martinez’s Rule 11 proceedings in error, alone, standing prejudicial, al i.e., first, respects, by incorrectly two ad though showing satisfy such a would vising Martinez that he faced a mandatory burden. Under the “cumulative error doc minimum years ten and a max trine,” satisfy require Mаrtinez can possible penalty imprisonment imum of life prong ments of the third if of Olano the One, second, on in failing Count to combined effect the two Rule 11 errors specifically advise that he Martinez would affected his substantial rights, even indi not guilty pleas have cause to withdraw his vidually sufficiently error preju neither is rejected if the court the Government’s sen Munoz, dicial. See United States v. 150 tencing recommendation. must next (5th 401, Cir.1998); 418 ascertain whether errors those were Fernandez, (1st 59, 145 F.3d Cir. “plain.” if, plain An error is under Olano 1998); Rivera, United States v. 900 F.2d appeal, the time of “the settled law of (10th Cir.1990) (“The cumula Supreme the Court or this circuit estab tive effect of two or individually more an lishes that error has occurred.” United potential preju harmless errors has the to Promise, (4th States v. 255 F.Sd dice a defendant to the same extent as a Cir.2001) (en banc) (quoting United States error.”). single reversible Neal, Cir.1996)). situation, In light this applicable of the Applying lеgal principles, these legal principles Rule 11 the decisions Martinez has failed to show that the two Promise, Cotton, in Apprendi, Iaquin errors in Rule 11 proceedings, his either ta, both these errors plain. were individually cumulatively, affected his all, rights. substantial First of Martinez is

D. satisfy unable to respect his burden with 11(c)(1) error, i.e., We next to consider third the court’s Rule its prong of and we must potential decide misstatement of the penalty on whether Martinez has that charge. shown the two the conspiracy Martinez contends rights. errors affected his conception poten- substantial that his incorrect of bis to he affected his substantial reason believe that would have tial sentence axiomatic that had rights, “[i]t because agree- to sought plea withdraw from he a maximum sen- known that faced [he] ment. Martinez therefore fails to demon- years imprison- than of 20 rather life tence strate the district court’s violation of ment, calculate[d] he [have] would 11(c)(1) affected his substantial proceeding to trial risks and benefits rights. Br. at 31. This differently.” Appellant’s may com- argument, glance, appear at first satisfy to Martinez also fails his only had pelling, and if Martinez been to burden under Olano with single with the charged and convicted 11(e)(2), district court’s violation of Rule conspiracy count of under U .S.C. i.e., its to failure advise Martinez he have carried burden of he pleas could not withdraw his if the district however, Indictment, persuasion. The al- rejected recom Government’s leged eight separate against crimes Mar- Although not mendation. he claims (Counts tinez, of those crimes and three rejection known have the Govern Thirteen) Eleven, Eight, were dis- sentencing ment’s recommendation pursuant to the missed at his give district court would not him cause to Thus, agreement. of his Mar- terms guilty pleas, withdraw his Martinez was acceptance plea agreemеnt of the tinez’s court, prior entering informed entirely predicated on reduc- was not some pleas, the court was not tion of his sentence on in Count One. charge bound the recommendation Gov Therefore, pre ernment. addition, eight separate criminal In point, vail must he demonstrate against Martinez meant he that he not into his potential exceeding far would have entered faced sentence fact, years. each of the seven twenty plea agreement if he had that the known counts, laundering money U.S.C. rejection court’s of the Government’s sen 1956(a)(1), separate potential carried a tencing give recommendation would twenty years’ imprisonment McCarthy, him cause withdraw. See $500,000. fine plus Indict- Under the (concluding prejudice F.3d at 1575 that ment, years’ Martinez therefore faced present if can evidence “appellant occurs fines, imprisonment and million in in- $3.5 pleaded guilty had that he would have penalty dependent any of under Count given warning”); the district court the Thus, per- properly he had One. even (“The ques Diaz-Vargas, 35 F.3d at 1224 One, penalty his Mar- ceived under Count ... [prejudice] depends tion of on whether to proceeding tinez faced the choice of trial knowledge compre the defendant’s and charges potential with a maximum eight of full correct information hension and penalty years’ imprisonment of 160 likely willing would have been to affect his fines, plea accepting million in $7.5 Martinez, plead guilty.”). ness to howev agreement potential his which reduced ex- er, support proposition, no for that offers by posure prison sixty years, to reduced and the record fails to indicate his million, by his exposure financial $1.5 guilty pleas contingent being were on his required Government recommend them if the able to withdraw Government’s his prison the court decrease sen- such, rejected. As recommendation Thus, tence. even if Martinez had been Martinez also fails to show that the Rule correctly permissible penal- of advised 11(e)(2) his ty conspiracy charge, on the there is no violation affected substantial rights.14 IV. Even when reviewed reasons, For foregoing Martinez’s doctrine, cumulative error Martinez is un challenges to his convictions and sentence persuasion. burden carry able to his of merit, are without affirm. inquiry relevant under that doctrine is AFFIRMED.

whether, errors, absent both Martinez plea would still have entered into the agreement. Although the cumulative im LUTTIG, Judge, concurring: Circuit pact impact of errors exceeds their Promise, In United States v. individually, Martinez is nevertheless un Cir.2001) (en banc), 168-86 I able demonstrate his substantial separately my prop- stated views as to the rights were affected. Even if Martinez er interpretation of 21 U.S.C. and I properly by had been advised the court repeаt will not those views here. The potential to his sentence and views, court disagreed with those and its inability plea to withdraw from the interpretation of section 841 is bind- now agreement if the recommen Government’s ing. interpretation Because that is the law rejected, dation were he still faced the I analy- circuit concur in the court’s proceeding choice to trial on the sis of errors allegedly by committed against facing potential sentence of him— Additionally, district court. only but years’ imprisonment million $7.5 imprisonment because Martinez faced accepting plea agreement fines—or years term even absent Count exposure prison

which reduced his One, I concur in also the court’s conclusion sixty exposure years and his financial carry Martinez has failed his bur- million. Martinez support, offers no $1.5 den showing rights his substantial record, and none is in the to suggest found were affected the district court’s errors. rejected that he have would agreement under those circumstances.

Therefore, even under the cumulative er doctrine,

ror satisfy fails to persuasion

burden under Olano.

Because satisfy Martinez is unable to prong

the third we need not

reach requirement, i.e., Olano’s fourth

whether this Court should its exercise dis plain

cretion to notice error.15 addition, accepted district pre-ponderance lished of the evidence. Government's recommendation challenge We de review novo a to the consti- gave adjustment Martinez three-level tutionality of a federal statute. United States Thus, acceptance responsibility. Mar- Buculei, (4th Cir.2001). everything tinez received that he could have have, however, already analyzed effect expected plea agreement. to receive under the Apprendi § on 21 U.S.C. and we have found 841 to be United constitutional. allegations In addition to his Rule 11 McAllister, States v. error, asserts 21 U.S.C. 841 is Cir.2001). precedent, Given our need light Apprendi unconstitutional in because further address Martinez's contention prescribed it removes facts that increase the point. range penalties province from the jury, and it allows thоse facts be estab- Notes to Fed.R.Crim.P. analysis A structural of the two stan- Amendment. The further ob- Committee dards of supports adoption review also our disagreement served the considerable plain approach. error The distinc- Supreme over the effect Court’s suggested by tion the Ninth Circuit is “[njotwith- McCarthy decision occurred premised concept on the there is a 52(a) ‍‌‌​‌‌​​‌‌‌‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​‌‌​​​​​​‌‌​‌​​‌​‌​‍standing in Rule the declaration difference, pur- for standard of review error, defect, ‘[a]ny irregularity or vari- poses, judge’s between rules that bind a ance which does not affect substantial convey conduct and rules that rights to a ” rights disregarded.’ shall be Id. These Court, however, Supreme defendant. The Committee, although statements made no such distinction in United States 52(b), directly concerned with Rule goal indicate that the Committee’s in en- (1993), holding L.Ed.2d 508 that “[d]evia- 11(h) acting part was in to demonstrate legal tion from a rule is [under ‘error’ that error under no Rule was different 52(b) unless the rule has been ] waived.” error, any from other and that it was Olano, 733-34, 507 U.S. at S.Ct. governed by the same standard of review. fact, In specifically Olano the Court Advisory sugges- no Committee made imposed obligations addressed rule that enjoy tion that Rule 11 errors should some judge, on the and it nevertheless held that status, special or that such errors are enti- plain analysis applied error if the defen- unique tled to be stan- reviewed under object dant failed to at trial.9 Id. at fact, dard. closed its Committee Thus, 113 S.Ct. 1770. the Olano Court 11(h) commentary on Rule with the follow- legal indicated that if a rule violated and statement, ing rebutting trial, the idea object the defendant fails to 11(h) subject somehow Rule 11 er- plain differentiated violation is error review juror replace 9. The error at was the district "[a]n issue Olano alternate who does not comply pre court’s failure regular juror discharged shall be after the 24(c) version of Rule of the Federal Rules of jury retires consider its verdict.” Procedure, Criminal which mandated that

Case Details

Case Name: United States v. Juan Martinez, A/K/A Jesus Garcia, A/K/A Roberto Gonzalez

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 17, 2002

Citation: 277 F.3d 517

Docket Number: 00-4245

Court Abbreviation: 4th Cir.