UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4095
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ENRIQUE FUNEZ, a/k/a Rick, a/k/a Jose Enrique Funes-
Garay, a/k/a Jose Enrique Funz-Garay,
Defendants – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:12-cr-00274-LO-1)
Submitted: August 28, 2013 Decided: September 30, 2013
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rebecca S. Colaw, REBECCA S. COLAW, P.C., Suffolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, John E.
Sinfelt, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Enrique Funez appeals his conviction after pleading
guilty to conspiracy to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. On appeal,
Funez claims that his guilty plea did not comply with Federal
Rule of Criminal Procedure 11. Specifically, he contends that
he did not give a knowing and voluntary plea because (1) “he did
not understand that he was waiving constitutional rights to a
grand jury”; and (2) “[t]he Rule 11 Colloquy did not inform
[him] that pleading guilty would waive his right to trial.”
Appellant’s Br. 1-2. We affirm.
“A guilty plea operates as a waiver of important rights,
and is valid only if done voluntarily, knowingly, and
intelligently, ‘with sufficient awareness of the relevant
circumstances and likely consequences.’” Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397
U.S. 742, 748 (1970)). “‘[A] guilty plea is a grave and solemn
act to be accepted only with care and discernment.’” United
States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting
Brady, 397 U.S. at 748). “In evaluating the constitutional
validity of a guilty plea, courts look to the totality of the
circumstances surrounding [it], granting the defendant’s solemn
declaration of guilt a presumption of truthfulness.” Id.
(citation and internal quotations omitted).
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In federal cases, Rule 11 of the Federal Rules of Criminal
Procedure “governs the duty of the trial judge before accepting
a guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). Rule 11 “requires a judge to address a defendant about
to enter a plea of guilty, to ensure that he understands the law
of his crime in relation to the facts of his case, as well as
his rights as a criminal defendant.” United States v. Vonn, 535
U.S. 55, 62 (2002). We “accord deference to the trial court’s
decision as to how best to conduct the mandated colloquy with
the defendant.” United States v. DeFusco, 949 F.2d 114, 116
(4th Cir. 1991); see also United States v. Wilson, 81 F.3d 1300,
1307 (4th Cir. 1996) (noting that this “Court has repeatedly
refused to script the Rule 11 colloquy, relying rather on the
experience and wisdom of the district judges below”).
“A federal court of appeals normally will not correct a
legal error made in criminal trial court proceedings unless the
defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
(2013) (citing United States v. Olano, 507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
exception to the normal rule, providing that “[a] plain error
that affects substantial rights may be considered even though it
was not brought to the court’s attention.” Fed. R. Crim. P.
52(b).
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Because Funez’s claims are raised for the first time on
appeal, this Court’s review is for plain error. See Vonn, 535
U.S. at 59; Olano, 507 U.S. at 731-33; United States v.
Martinez, 277 F.3d 517, 524 (4th Cir. 2002). It is therefore
Funez’s burden to show (1) error; (2) that was plain; and (3)
that affected his substantial rights. See Martinez, 277 F.3d at
524. Even then, we retain discretion to notice the error,
"which we should exercise only if the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings." Id. (internal quotations and alterations
omitted). “[A] defendant who seeks reversal of his conviction
after a guilty plea, on the ground that the district court
committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004); see Martinez, 277 F.3d at 532.
We have reviewed the record and the parties’ briefs, and we
conclude that Funez has failed to make the required showing.
Funez does not show a reasonable probability that, but for any
error that potentially may have occurred, he would not have
entered his guilty plea.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this Court and argument would not aid the decisional process.
AFFIRMED
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