UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-4254
JAVIER AGUILAR
RODRIGUEZ-GONZALES, also known
as Jesus Melendez Montez, also known as
Antonio Gonzalez Rodriguez, also known
as Antonio Gonzales Lopez,
Defendant - Appellant.
ORDER
Filed October 14, 2004
Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and PORFILIO,
Circuit Judges.
Appellant’s motion to publish the order and judgment filed September 2, 2004, is
granted. The published opinion is attached to this order.
Jenine Jensen’s motion to withdraw as counsel for appellant is granted.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 2 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4254
JAVIER AGUILAR RODRIGUEZ-
GONZALES, also known as Jesus
Melendez Montez, also known as Antonio
Gonzalez Rodriguez, also known as
Antonio Gonzales Lopez,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:02-CR-102-PGC)
Submitted on the briefs:*
Raymond P. Moore, Federal Public Defender, and Jenine Jensen, Assistant Federal Public
Defender, Denver, Colorado, for Defendant-Appellant.
Paul M. Warner, United States Attorney, and Diana Hagan, Assistant United States
Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.
*
Neither counsel requested oral argument. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of this appeal. See Fed. R. App.
P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral
argument.
Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and PORFILIO,
Senior Circuit Judge.
McWILLIAMS, Senior Circuit Judge.
In a two-count indictment filed in the United States District Court for the District
of Utah, Javier Aguilar Rodriguez-Gonzales (“defendant”) was charged with possession
with an intent to distribute more than five grams of methamphetamine in violation of 21
U.S.C. §841(a)(1) and, in the second count, with possession of a firearm by an unlawful
user of a controlled substance in violation of 18 U.S.C. §922(g)(3). Defendant, through
counsel, filed a motion to suppress the evidence obtained in a search of his residence,
contending that he did not knowingly and voluntarily consent to the search and that his
Fourth Amendment rights had been violated. After hearing, the district court denied the
motion to suppress.
Thereafter, counsel for the defendant moved to change defendant’s plea of not
guilty, and enter a so-called unconditional plea of guilty to both counts in the indictment.
Fed. R. Crim. P. 11(a)(1). Counsel did not ask to enter a conditional plea of guilty,
reserving the right to a direct appeal of the district court’s denial of defendant’s motion to
suppress, as permitted by Fed. R. Crim. P. 11(a)(2). After hearing, the district court
allowed the defendant to change his plea to one of guilty on both counts.
At sentencing, the defendant orally moved to withdraw his plea of guilty because
-2-
the proposed sentence under the United States Sentencing Guidelines was greater than
had been represented to him by his attorney. That motion was denied by the district court,
and the defendant was then sentenced to imprisonment for 148 months, 60 months of
supervised release, and a $200 special assessment. Defendant appeals his conviction and
sentence. Defendant’s counsel in the district court was thereafter permitted to withdraw
and he is represented on appeal by the Colorado Federal Public Defender’s office.
On appeal, appointed counsel asserts two grounds for reversal: (1) defendant’s
unconditional plea of guilty was not knowingly and voluntarily made because defendant
had been “misadvised” by his trial counsel and the district court as to the consequences of
an unconditional plea of guilty, and (2) the district court erred by its failure to afford the
defendant his right of allocution before sentencing, as required by Fed. R. Crim. P.
32(i)(4)(A)(ii).
At defendant’s change of plea hearing, an interpreter was sworn and participated,
intermittently, during the entire hearing. At the very outset of the hearing, the defendant
personally advised the court, his attorney and a government attorney who was in
attendance, that, though he desired to plead guilty, he also desired to appeal the court’s
denial of his motion to suppress. The court inquired of defense counsel about the matter,
and counsel advised the court that he had informed the defendant that by pleading guilty,
he waived his right to a direct appeal of the denial of his motion to suppress, but that he
could still, in a collateral proceeding under 28 U.S.C. § 2255, obtain appellate review of
-3-
the district court’s denial of his motion to suppress. The district court seemingly
acquiesced in defense counsel’s statement. The district court did make inquiry of the
government attorney, who was somewhat noncommittal as to defense counsel’s statement
that the defendant could obtain appellate review of the court’s denial of his motion to
suppress in a subsequent proceeding under § 2255.
On appeal, present counsel for the defendant argues that defendant’s guilty plea
was not knowingly and voluntarily made and that he should be allowed to withdraw his
plea of guilty, because he had been led to believe that he could raise the matter in a §
2255 proceeding, which, in fact and in law, he could not. In support of the latter, counsel
cited U.S. v. Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990), where we held that “[b]y
entering a voluntary plea of guilty, Davis [the defendant] waived all nonjurisdictional
defenses.” Thus, according to counsel, the defendant, having pled guilty, waived his right
to a direct appeal of the denial of his motion to suppress, nor could it be raised
subsequently on a § 2255 proceeding. Counsel also cited Fields v. Gibson, 277 F.3d
1203, 1213 (10th Cir. 2002), where we held that a “plea may be involuntary when an
attorney materially misinforms the defendant of the consequences of the plea.” Counsel
then cited United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993), where we stated
“[t]oday, we join the Ninth Circuit and hold that Fourth Amendment violations are not
reviewable in a § 2255 motion when the federal prisoner has had a full and fair
opportunity to litigate the Fourth Amendment claim at trial and present issues in direct
-4-
appeal.”
The government in its brief concedes that defendant’s guilty plea was not
knowingly and voluntarily made and that defendant’s conviction should be reversed and
the case remanded with directions that the district court vacate its sentence and allow
defendant to withdraw his plea of guilty. We agree.
The government also agrees that defendant’s right of allocution was violated by
the district court. U.S. v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993). We agree.
Judgment reversed and case remanded with directions that subsequent proceedings
be consonant with the views herein expressed.
-5-