FILED
United States Court of Appeals
Tenth Circuit
July 28, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-8071
v. (D.C. No.06-CR-140-WFD-1)
(District of Wyoming)
JOSÉ DURAN-NEVAREZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, HOLLOWAY, and O’BRIEN, Circuit Judges.
I. INTRODUCTION
On May 17, 2006, José Duran-Nevarez was named in twenty-one counts of
an indictment with multiple defendants. On February 28, 2007, the Defendant-
Appellant agreed to a plea agreement under Fed. R. Crim. Proc. 11(c)(1)(C) under
which Mr. Duran-Nevarez would plead guilty to seven of the twenty-one charges
against him and the remaining fourteen charges would be dismissed as to him.
The district court held a change of plea hearing on March 2, 2007 to allow Mr.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P.32.1 and 10th
Cir. R. 32.1.
Duran-Nevarez to plead guilty. Mr. Duran-Nevarez did not admit the facts
underlying one of the counts in the guilty plea. The district court ended the
hearing without Mr. Duran-Nevarez pleading guilty. A status conference was
held on March 12, 2007. After the conclusion of the status conference, another
change of plea hearing was held on March 14, 2007, where Mr. Duran-Nevarez
pled guilty to six of the twenty-one charges.
Sentencing occurred on August 31, 2007. The plea agreement contained an
accord between the parties that a specific 30 year sentence was appropriate.
Under Fed. Crim. R. Proc. 11(c)(4), the court was required to impose that specific
sentence if the plea agreement was accepted. The court sentenced Mr. Duran-
Nevarez to 30 years in prison, five years of supervised release, a $600 special
assessment, restitution in the amount of $354.72, and a $1,000 fine.
Mr. Duran-Nevarez argues on appeal that the district court improperly
participated in plea negotiations and wrongfully imposed the fine in violation of
the terms of the plea agreement. He asks that his guilty plea and sentence be
vacated and that the case be remanded for further proceedings before a different
district court judge. In the alternative, he asks that the fine component of his
sentence be vacated. We have appellate jurisdiction under 28 U.S.C. § 1291.
II. BACKGROUND
In the original indictment, Mr. Duran-Nevarez was charged in twenty-one
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counts of the multi-defendant indictment. 1 Two change of plea hearings occurred.
The first, on March 2, 2007, involved a plea agreement stating that Mr. Duran-
Nevarez would plead guilty to seven of the twenty-one charges in the indictment. 2
During the hearing, the court stated:
[Y]ou and your lawyer would have to assess the adequacy of the
government’s evidence and determine in your own mind whether or
1
(Count 1) conspiracy to possess with intent to distribute more than 500
grams of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); (Count
2) conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(2)(A),
(a)(2)(B)(i) and 1956(h); (Count 3) distribution of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)A); (Count 5) maintaining drug-involved
premises, in violation of 21 U.S.C. § 856(a)(1) and (2); (Counts 10, 13, 21, 26,
45, 46) use of a communication facility to facilitate a felony drug offense, in
violation of 21 U.S.C. § 843(b); (Count 11) possession with intent to distribute
methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C), and 18 U.S.C. § 2; (Counts 16, 36) possession with intent to
distribute methamphetamine, and aiding and abetting, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (Count 25, 41) possession with intent
to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A); (Count 48) sexual abuse of a minor and aiding and abetting, in
violation of 18 U.S.C. §§ 2243(a)(1) and (2), 1153, and 2; (Count 59) carrying a
firearm during and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A); (Count 60) using a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); (Count 62)
possession with intent to distribute methamphetamine and aiding and abetting, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2; (Count 64)
illegal re-entry of previously deported alien into the United States, in violation of
8 U.S.C. § 1326(a)(1) and (2) and (b)(2); and (Count 65) criminal forfeiture, in
violation of 21 U.S.C. § 853. R.I, Doc. 28.
2
The initial plea agreement had Mr. Duran-Nevarez pleading guilty to these
seven counts: 1, 2, 5, 48, 59, 62, and 65. R.III, at ¶ 2. The government agreed to
dismiss at sentencing the remaining counts as to him. Id. at ¶ 12b. The parties
stipulated that the Defendant’s offense involved more than 1.5 kilograms of actual
methamphetamine. Id. at ¶ 8, R.VII at 22-23.
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not the government is likely able to prove your guilt; and if you
thought there was a benefit to pleading guilty – the benefit being you
avoid a life sentence – the potential for a life sentence which is the
potential here – that it would be prudent for you to enter into a plea
and you have a thorough discussion regarding the contents of the
plea agreement before you signed it, then we can proceed here.
R.VI at 10. Later in the hearing, the court went on to state:
I would tell you very candidly, counsel and Mr. Duran[-Nevarez],
that if you had gone to trial, and if – it’s a big “if” – but if a jury of
your peers found you guilty of these offenses, your sentence would
be closer to life in prison than it is to 30 years; and I would never
support the transfer of a person doing 30 years to life to another
prison in another country where that sentence might be reduced by
that country’s authorities.
Id. at 17.
However, Mr. Duran-Nevarez disputed the facts regarding the money
laundering conspiracy count (Count 2) which prompted the court to end the
hearing without accepting the plea agreement. The district court stated that Mr.
Duran-Nevarez would have one more chance to enter a guilty plea before trial
would begin.
Prior to the second change of plea hearing, a status conference was held on
March 12, 2007 involving the district court judge, Defense counsel, Mr. Duran-
Nevarez, and an interpreter. The government filed a motion to supplement the
record with a document #722 “Notice Setting a Status Conference and Hearing on
All Pending Motions” conceding that the Defendant-Appellant and his attorney
were both present at the status conference on March 12, 2007. Supplemental
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Appendix, Vol. II, Document no. 722: “Notice Setting a Status Conference and
Hearing on All Pending Motions for March 12, 2007.” At the outset, the
Assistant United States Attorney explained the purpose of the status conference:
with respect to Mr. José Duran[-Nevarez], as the Court is aware, Mr.
Duran[-Nevarez] attempted to change his pleas pursuant to the plea
agreement Friday before last, and there were some issues with
respect to Count Two and perhaps more than just that count.
Mr. Rogers, [Federal Public Defender for Mr. Duran-Nevarez] on
behalf of Mr. Duran[-Nevarez], and I are working hopefully to come
to terms on those issues and re-approach the Court with a second
attempt for a change of plea. There is apparently a change-of-plea
setting for March 28. Candidly, Your Honor, our hope is that if we
can put this together, we do that sooner than later.
R.VIII at 4. During the status conference held on March 12, 2007, 3 the district
court judge stated:
Your client’s maximum is life. Now, the plea he has with the
government now pending before the Court is 30 years, not an easy
sentence to swallow. But when we say ‘life’ in federal court, surely
you’ve told your client that ‘life’ in a United States Courthouse
means ‘life without the possibility of parole.’
So the fact that you are perhaps urging him to enter a plea doesn’t
come as any surprise to me, but the fact is it’s your client’s option. If
he wants a trial, let the jury assess the evidence. If your assessment
is wrong and they acquit him, good for him.
...
Some clients listen to advice; some don’t. You and I will have to be
respectful of Mr. Duran[-Nevarez]’s decision if he decides not to
3
As noted earlier, the government supplemented the record prior to oral
argument with Document #722 entitled “Notice Setting a Status Conference and
Hearing on All Pending Motions.” This document clearly shows, as does the
transcript from the March 12, 2007 status conference, that Mr. Duran-Nevarez
was indeed present during the status conference.
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listen to your advice, but he has to understand that he has to accept
the consequences if he is wrong; and in this case the consequence is
life imprisonment without the possibility of parole.
Id. at 20-21 (emphasis added).
At the March 14, 2007 change of plea hearing, Mr. Duran-Nevarez pled
guilty to six of the twenty-one charges. 4 On August 31, 2007, the court held the
sentencing hearing. The court was bound to impose the thirty year sentence
contained in the plea agreement under Fed. R. Crim. Proc. 11(c)(4). The full
terms of the sentence are as follows: Mr. Duran-Nevarez received a thirty year
term of imprisonment, five years of supervised release, a $600 special assessment,
restitution in the amount of $354.72, and a $1,000 fine.
III. DISCUSSION
There are two issues in the instant case: (1) whether the district court
violated Fed. R. Crim Proc. 11(c)(1) by improperly participating in plea
discussions and (2) whether the district court violated the plea agreement by
4
In the second and accepted plea agreement, Mr. Duran-Nevarez pled
guilty to six of the seven counts from the first plea agreement. In the March 14
agreement, Mr. Duran-Nevarez did not plead guilty to count 65 which was not
part of the plea agreement. The counts that Mr. Duran-Nevarez pled guilty to and
the corresponding sentences are as follows:
(Counts 1 and 62) 300 months’ imprisonment to run concurrently,
(Counts 2 and 5) 240 months’ imprisonment concurrent to Counts 1 and 62,
(Count 48) 180 months’ imprisonment concurrent to Counts 1, 2, 5, and 62,
(Count 59) 60 months’ imprisonment to run consecutively to all other counts.
The plea agreement also stipulated that no fine would be imposed. R.III, Doc.
703 at 6.
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imposing a $1,000 fine whereas the plea agreement stated that no fine would be
imposed. The government has confessed error as to the imposition of the fine.
Thus, our inquiry focuses only on the first issue.
A. Standard of Review
The primary question before us is the proper standard of review: plain error
or de novo. This question was noted in United States v. Cano-Varela, 497 F.3d
1122 (10th Cir. 2007). However, Cano-Varela left the question unanswered
because we found that the error was sufficient to require vacating the sentence
under both a de novo standard and a plain error standard. Due to the similarity
between the instant case and Cano-Varela, we find that we are presented with a
situation in the instant case that is analogous to Cano-Varela. Therefore, we
decline to answer definitively the question of the proper standard of review. 5
B. Fed. R. Crim. Proc. 11(c)(1) Violations
The leading case in our circuit on Fed. R. Crim. Proc. 11(c)(1) violations is
5
The discussion surrounding the proper standard of review for situations
involving improper participation by the court in plea negotiations is set forth in
Cano-Varela, 497 F.3d at 1132. For example, we reasoned that plain error review
might not be appropriate where “all three legally trained participants in this
proceeding shared the view that the plea agreement negotiated by defense counsel
and the prosecutor was in [the defendant’s] best interest, and . . . the district
judge’s communications with [the defendant] were intended to assist defense
counsel in persuading the defendant to follow counsel’s advice.” Id. Further, we
explained that the Defendant’s counsel would not object because the plea
agreement would be in concert with Defense counsel’s advice and
recommendation for the client. Id. We find that a similar situation existed in the
instant case.
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Cano-Varela, 497 F.3d 1122 (10th Cir. 2007). In pertinent part, that rule
provides plainly:
(c) Plea Agreement Procedure
(1) In General. An attorney for the government and the
defendant’s attorney, or the defendant when proceeding pro se, may
discuss and reach a plea agreement. The court must not participate
in these discussions.
Fed. R. Crim Proc. 11(c)(1) (emphasis added).
In Cano-Varela, we stated that “the unambiguous mandate of Rule 11
prohibits the participation of the judge in plea negotiations under any
circumstances: it is a rule that . . . admits of no exceptions.” 497 F.3d at 1132
(internal quotations and citations omitted). We explained that “[e]xcluding the
judge from the plea discussions...serves three purposes: it minimizes the risk that
the defendant will be judicially coerced into pleading guilty, it preserves the
impartiality of the court, and it avoids any appearance of impropriety.” Id. at
1132 (internal quotations and citations omitted). Furthermore, we held that “any
discussion of the penal consequences of a guilty plea as compared to going to trial
is inherently coercive, no matter how well-intentioned.” Id. at 1133 (internal
quotations and citations omitted).
In Cano-Varela we also stated that “Rule 11’s stringent prohibitions...do
not apply once the parties have concluded their agreement, and the prosecutor has
laid it out in open court, even if the agreement is not formal and binding.” Cano-
Varela, 497 F.3d at 1132 (internal quotations and citations omitted). “In other
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words, once the parties have ‘hammered out’ the details of their agreement, Rule
11[(c)] does not prevent the sentencing judge from questioning the defendant
regarding the terms, consequences, and acceptance of the plea agreement or from
providing the defendant with information relating to these matters.” Id.
The government argues in its brief that the plea agreement was already
“hammered out” and presented in open court. Brief of Appellee at 20-21. This is
not an entirely true statement. While the March 2 change of plea hearing did
involve the presentation of the first plea agreement, that plea agreement was not
accepted by the court because Mr. Duran-Nevarez did not admit the factual
circumstances surrounding Count 2 (money laundering) and therefore did not
admit the elements of that crime. Thus, he did not plead guilty and the court
could not accept the plea agreement.
The March 2 plea agreement, although presented to the court, was not the
same plea agreement presented to the court at the March 14 change of plea
hearing. The March 14 plea agreement did not contain a guilty plea to Count 65
(criminal forfeiture, in violation of 21 U.S.C. § 853). Thus, while similar, these
are not the same plea agreements and more negotiations were clearly necessary
before the Defendant-Appellant would plead guilty. This necessarily requires the
conclusion that the plea agreement had not been hammered out until March 14
because the plea agreement had changed in a matter of twelve days.
The differences between the plea agreements may stem from the March 12
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status conference held by the court with Mr. Duran-Nevarez, his interpreter, and
Defense counsel present. During the proceedings, the court made a numerical
comparison between the amount of time to be served, were the Defendant-
Appellant to plead guilty and if he were to go to trial and be found guilty by a
jury. As we stated in Cano-Varela, “any discussion of the penal consequences of
a guilty plea as compared to going to trial is inherently coercive, no matter how
well-intentioned.” 497 F.3d at 1133 (internal quotations and citations omitted).
Candidly, the court discussed the advice of Mr. Duran-Nevarez’s counsel
and explained that “[s]ome clients listen to advice; some don’t. You and I will
have to be respectful of Mr. Duran[-Nevarez]’s decision if he decides not to listen
to your advice, but he has to understand that he has to accept the consequences if
he is wrong; and in this case the consequence is life imprisonment without the
possibility of parole.” R. VIII at 20-21. This statement resembles the discussion
in Cano-Varela identifying why the proper standard of review is difficult to
define. We have little doubt that the court, along with the other legally trained
participants, had good intentions. However, Cano-Varela controls the situation in
the instant case and regardless of the propriety of the court’s actions, these types
of comparisons between time to be served in the plea agreement and after a jury
conviction cannot be made. We cannot say that these statements were not
coercive nor can we say that they are not the root of the reason for Mr. Duran-
Nevarez’s change of plea.
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IV. CONCLUSION
We VACATE Mr. Duran-Nevarez’s guilty plea and sentence and
REMAND for further proceedings in accordance with this opinion, and before a
different district court judge. See United States v. Cano-Varela, 497 F.3d at
1134.
IT IS SO ORDERED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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