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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12770
________________________
D.C. Docket No. 1:10-cr-00490-TCB-LTW-7
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAURO PUENTES-HURTADO,
a.k.a. Victor,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 22, 2015)
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and ROSENTHAL, *
District Judge.
*
Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
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JORDAN, Circuit Judge:
When he pled guilty to narcotics and money laundering conspiracy charges,
Lauro Puentes-Hurtado signed a plea agreement which contained a “limited”
appeal waiver. That waiver prohibited Mr. Puentes-Hurtado from appealing or
collaterally attacking his conviction and sentence “on any ground,” unless the
government appealed or the sentence was based on an upward departure or
variance. See D.E. 338 at 18.
Despite the appeal waiver, Mr. Puentes-Hurtado pursued this appeal, arguing
that his counsel’s ineffective assistance rendered his guilty plea involuntary, that
the district court violated Rule 11 by failing to inform him of the nature of the drug
conspiracy charge and by failing to secure a sufficient factual basis for the guilty
plea, and that the government breached the plea agreement and caused the district
court to commit procedural error in calculating the advisory guideline range for the
narcotics conspiracy charge. We hold, like the rest of our sister circuits, that these
claims are not barred by the appeal waiver in Mr. Puentes-Hurtado’s plea
agreement. On the merits, however, we conclude that Mr. Puentes-Hurtado is not
entitled to the relief he seeks in this direct appeal.
I
A federal grand jury charged Mr. Puentes-Hurtado with conspiring to
possess five kilograms or more of cocaine and 50 grams or more of
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methamphetamine with the intent to distribute in violation of 21 U.S.C. § 846
(Count 1), and conspiring to commit money laundering in violation of 18 U.S.C. §
1956(h) (Count 3). Mr. Puentes-Hurtado pled guilty to these charges pursuant to a
written plea agreement which contained the appeal waiver language described
above.
At the Rule 11 colloquy, the district court summarized the two charges for
Mr. Puentes-Hurtado, but did not specifically explain the elements of those charges
to him. See D.E. 410 at 4-5. The district court also discussed the appeal waiver
and explained its consequences. Mr. Puentes-Hurtado said that he understood the
provision, and that he entered into the plea agreement freely and voluntarily. See
id. at 7-9. The district court then asked the government to provide a factual basis
for the plea.
The government proffered that Mr. Puentes-Hurtado was involved in a
Mexican drug-trafficking organization, called El Guero, headed by a man known
only as Jairo. Mr. Puentes-Hurtado was responsible for the transportation of
cocaine from Mexico to Atlanta and the subsequent movement of the drug
proceeds from Atlanta to Mexico. See id. at 10.
Through surveillance, the government ascertained that approximately five
kilograms of cocaine were destined to arrive in Atlanta on March 5, 2010, with a
wholesale price of $27,000 per kilogram. On March 9, 2010, government agents
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intercepted a telephone call which revealed that members of El Guero planned to
transport drug proceeds back to Mexico. The government tracked several vehicles
that departed from a stash house and later stopped at a gas station and a Wal-Mart.
Subsequently, local authorities conducted a traffic stop of the vehicles, one of
which was driven by Mr. Puentes-Hurtado. See id. at 10-11.
During their search of the vehicles, the police discovered 52 bundles of
cash—totaling $1.2 million—hidden in wheel panels and secret compartments.
Scraps of paper on the bundles appeared to denote the parties who were to receive
the money. The police also recovered several cell phones, one of which listed
Jairo as a contact and contained a text message directing someone to “call Jairo.”
See id. at 11.
Additionally, the police reconstructed about 85% of a receipt, dated March
5, 2010, which corresponded to the alleged cocaine delivery date, as well as a
video that appeared to show Mr. Puentes-Hurtado at a Wal-Mart purchasing the
supplies that were used to wrap the bundles of money. The government further
advised the district court that it expected David Sanchez, one of the alleged co-
conspirators, to corroborate Mr. Puentes-Hurtado’s involvement in the drug
conspiracy. See id. at 12.
After the government finished its proffer, the following exchange took place
between the district court and Mr. Puentes-Hurtado:
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THE COURT: Mr. Hurtado, did you understand everything
that [the government] just said?
[MR. PUENTES-HURTADO]: Yes.
THE COURT: And do you generally agree with [the
government’s] description of the crime and how it occurred?
[MR. PUENTES-HURTADO]: Not on everything.
THE COURT: But most of it?
[MR. PUENTES-HURTADO]: Yes.
THE COURT: Are you in fact guilty of Counts 1 and 3 of the
superseding indictment?
[MR. PUENTES-HURTADO]: I am guilty of transporting the
money, because I did deliver it in El Paso, Texas.
THE COURT: You need to be more specific, are you guilty of
Count 1 of the indictment?
[MR. PUENTES-HURTADO]: Yes.
THE COURT: How about Count 3?
[MR. PUENTES-HURTADO]: Yes.
Id. at 12-13. The district court then turned its attention to Mr. Puentes-Hurtado’s
counsel, Donald Henderson.
THE COURT: Mr. Henderson, have you reviewed the
government’s evidence and satisfied yourself that it is in your
client’s best interest to plead guilty to these two charges?
MR. HENDERSON: Yes I have, your honor. And with regard
to his response to Count 3, I had a little trouble understanding
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the translation myself, so I could see where it might cause him
some pause before he answered yes.
THE COURT: Right. Do you believe that he is knowingly and
voluntarily and freely waiving his constitutional rights this
morning?
[MR. PUENTES-HURTADO]: Yes, your honor.
Id. at 13. Satisfied that there was a sufficient basis, the district court accepted Mr.
Puentes-Hurtado’s guilty plea.
A probation officer later prepared a presentence investigation report which
recommended a base offense level of 38 for the narcotics charge under U.S.S.G. §
2D1.1(c)(2), based on a drug quantity of 244 kilograms of cocaine. When the
money laundering conspiracy charge and other enhancements and reductions were
factored in, Mr. Puentes-Hurtado faced an advisory guideline range of 292-365
months in prison, including a statutory minimum sentence of 120 months.
At the sentencing hearing, Mr. Puentes-Hurtado objected to the probation
officer’s calculation of the drug quantity. His counsel, Mr. Henderson, argued that,
based on his discussions with the government, he believed that Mr. Puentes-
Hurtado was only pleading guilty to five kilograms or more of cocaine, which he
interpreted as not more than five kilograms of cocaine (and a lower base offense
level of 32). See D.E. 411 at 3-4.
Mr. Henderson said that he “in no way anticipated” that the base offense
level would be higher than 32 and had advised Mr. Puentes-Hurtado based on that
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understanding. Mr. Henderson explained that “if [the government knew that the
drug quantity amount] was 244 kilograms, they would have put 150” kilograms,
instead of five kilograms, in the plea agreement. See id. at 4-5.
The district court asked Mr. Henderson if the language in the plea agreement
(“more than five” kilograms of cocaine) allowed the government to prove that the
drug quantity was 244 kilograms. When Mr. Henderson reluctantly conceded that
the government could assert an amount higher than five kilograms, see id. at 5-6,
the district court said that it had “some empathy for Mr. Henderson as a lawyer if
he advised his client that [the amount] was [limited] to five [kilograms],” id. at 8,
and overruled Mr. Puentes-Hurtado’s objection to the drug quantity:
[T]he scope of [Mr. Puentes-Hurtado’s] criminal activity is accurately
described in the PSR. It was extensive. The amount of drugs, the
quantity of drugs involved were extensive. He was at the top of the
chain, that is evident from the reading the PSR, and particularly the
portions to which there were no objection. So I do find that his scope
of criminal activity was extensive and as much as anyone else
involved, and therefore it is not inappropriate to hold him accountable
for the 244 kilograms of cocaine as detailed in the PSR.
Id. at 10.
The district court confirmed that Mr. Puentes-Hurtado faced an advisory
guideline range of 292-365 months in prison, with a statutory minimum sentence
of 120 months. See id. at 14. After taking into consideration the sentencing
factors set forth in 18 U.S.C. § 3553(a), the district court granted the parties’ joint
recommendation for a variance, which reduced the advisory guideline range to
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210-262 months in prison, including a statutory minimum sentence of 120 months.
See id. The government recommended a sentence of 210 months, while Mr.
Henderson advocated for a sentence of somewhere between 150 and 180 months.
See id. at 14-15. The district court sentenced Mr. Puentes-Hurtado to a total of 180
months’ imprisonment, to be followed by five years of supervised release.
Significantly, the district court stated that “this would have been the court’s
sentence even if the court got it wrong [on the drug quantity issue] because . . . this
is the appropriate sentence either way[.]” Id. at 19.
II
The government argues that Mr. Puentes-Hurtado’s claims are barred by the
appeal waiver in the plea agreement. Exercising plenary review, see, e.g., United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008), we reject the
government’s contention.
“A plea of guilty is constitutionally valid only to the extent it is ‘voluntary’
and ‘intelligent.’” Bousley v. United States, 523 U.S. 614, 618 (1998) (citation
omitted). It follows, therefore, that an appeal waiver or collateral attack waiver
which is part of a guilty plea is unenforceable if the plea itself is involuntary or
unintelligent. “Waivers of appeal must stand or fall with the agreements of which
they are a part. If the agreement is voluntary, and taken in compliance with Rule
11, then the waiver of appeal must be honored. If the agreement is involuntary, or
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otherwise unenforceable, then the defendant is entitled to appeal.” United States v.
Wenger, 58 F.3d 280, 282 (7th Cir. 1995). Accord United States v. Carreon-
Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012) (appeal waiver “cannot be enforced
‘to bar a claim that the waiver itself—or the agreement of which it was a part—
was unknowing or involuntary’”); United States v. Hernandez, 242 F.3d 110, 113
(2d Cir. 2001) (explaining that a court will not enforce a waiver of appellate rights
where a defendant challenges “the constitutionality of the process by which he
waived those rights”); De Roo v. United States, 223 F.3d 919, 924 (8th Cir. 2000)
(“A defendant’s plea agreement waiver of the right to seek . . . post-conviction
relief does not waive [the] defendant’s right to argue . . . that the decision to enter
into the plea was not knowing and voluntary because it was the result of
ineffective assistance of counsel.”).
As traditional contract principles generally apply to plea agreements, see
Allen v. Thomas, 161 F.3d 667, 671 (11th Cir. 1998), appellate review is also
permitted when a defendant claims that the government breached the very plea
agreement which purports to bar him from appealing or collaterally attacking his
conviction and sentence. See, e.g.,United States v. Bowe, 257 F.3d 336, 342 (4th
Cir. 2001) (“We agree with our sister circuits that a party’s waiver of the right to
seek appellate review is not enforceable where the opposing party breaches a plea
agreement.”). Similarly, an appeal waiver does not bar a Rule 11 claim that there
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is an insufficient factual basis to support a guilty plea. See United States v.
Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008); United States v. Adams, 448 F.3d
492, 497-98 (2d Cir. 2006); United States v. Portillo-Cano, 192 F.3d 1246, 1250
(9th Cir. 1999). Such a claim “goes to the heart of whether [the] guilty plea,
including the waiver of appeal, is enforceable.” Portillo-Cano, 192 F.3d at 1250.
All of Mr. Puentes-Hurtado’s claims come within the categories described
above. We therefore hold that these claims are not barred by the appeal waiver in
the plea agreement, and move on to the merits.
III
As we explain, Mr. Puentes-Hurtado is not entitled to relief on his claims.
A
Mr. Puentes-Hurtado first argues that his plea was involuntary and
unintelligent because his counsel, Mr. Henderson, rendered ineffective assistance
under the Sixth Amendment standard established in Strickland v. Washington, 466
U.S. 668 (1984). According to Mr. Puentes-Hurtado, Mr. Henderson incorrectly
advised him that he would be sentenced based on no more than five kilograms of
cocaine, even though the indictment and the plea agreement both indicated that the
quantity of cocaine involved in the narcotics conspiracy was five kilograms or
more. See Appellant’s Br. at 25-35.
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We generally do not address ineffective assistance of counsel claims on
direct appeal, see United States v. Hilliard, 752 F.2d 578, 580 (11th Cir. 1985), and
we see no reason to depart from that general approach here. Although the record
contains some evidence concerning Mr. Henderson’s performance, it is not
sufficiently developed to allow us to address the ineffective assistance of counsel
claim.
To establish Strickland prejudice in this context, Mr. Puentes-Hurtado must
show “that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). We do not have any testimony from Mr.
Henderson or from Mr. Puentes-Hurtado concerning their discussions about (or
their understandings of) the plea agreement or drug quantity issues. We also do
not have any testimony from Mr. Puentes-Hurtado about whether he would have
insisted on going to trial had he known that his advisory guideline range on the
narcotics charge would not be limited to five kilograms of cocaine and could be
based on 244 kilograms. We think the best course is to allow Mr. Puentes-
Hurtado, if he wishes, to file a motion to vacate under 28 U.S.C. § 2255, and to
have the necessary evidence on the performance and prejudice prongs of Strickland
and Hill presented in that proceeding. See generally Massaro v. United States, 538
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U.S. 500, 504 (2003) (“in most cases a motion brought under § 2255 is preferable
to direct appeal for deciding claims of ineffective assistance”).
B
Mr. Puentes-Hurtado’s second challenge is based on alleged violations of
Rule 11 by the district court. See Fed. R. Crim. P. 11(b)(1)(G), (b)(3). According
to Mr. Puentes-Hurtado, the district court failed to inform him of the nature of the
narcotics conspiracy charge, and failed to secure a sufficient factual basis for his
plea to that charge. See Appellant’s Br. at 37-43.
Because Mr. Puentes-Hurtado did not assert these Rule 11 violations in the
district court, our review is only for plain error. See United States v. Rodriguez,
751 F.3d 1244, 1251 (11th Cir. 2014) (Rule 11 violations raised for the first time
on appeal are reviewed for plain error). To carry his burden of demonstrating plain
error, Mr. Puentes-Hurtado must show that there was error, that the error was plain,
and the error affected his substantial rights. See Fed. R. Crim. P. 52(b); United
States v. Davila, 133 S.Ct. 2139, 2147 (2013). If he makes that showing, we may
correct the error if it “seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(citations omitted) (alteration in original). Our review leads us to conclude that
there was no plain error.
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With respect to the alleged Rule 11(b)(1)(G) violation, “there is no one
mechanical way . . . that a district court is required to inform the defendant of the
nature of [his] charges[.]” United States v. Wiggins, 131 F.3d 1440, 1443 (11th
Cir. 1997). “[E]ach colloquy [should be] done individually based on various
factors, such as the simplicity or complexity of the charges and the defendant’s
sophistication and intelligence[.]” Id. For simple charges that are generally
familiar to a layman, “a reading of the indictment, followed by an opportunity
given the defendant to ask questions about it, will usually suffice.” Id.
The district court asked Mr. Puentes-Hurtado if he understood that Count 1
charged him “with a conspiracy to possess with the intent to distribute cocaine and
methamphetamine,” and Mr. Puentes-Hurtado responded “[c]orrect.” D.E. 410 at
4-5. Although the better approach would have been for the district court to also
explain the elements of the narcotics conspiracy charge, we cannot say that the
failure to do so affected Mr. Puentes-Hurtado’s substantial rights. Under our
precedent, that charge was a “simple” one, and the district court did not commit
plain error when it failed to provide more explanation. See United States v. Bell,
776 F.2d 965, 969 (11th Cir. 1985) (holding that conspiracies to import marijuana
and to possess marijuana with intent to distribute were “‘simple’” offenses) (citing
United States v. Dayton, 604 F.2d 931, 942 (5th Cir. 1979) (en banc)). This is not
a case like United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001),
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where we set aside a guilty plea on plain error review because the district court
merely asked the defendant if he had read the indictment and understood what he
had been charged with.
The alleged Rule 11(b)(3) violation is a bit more complicated due to an
intra-circuit conflict. Simply stated, our cases dealing with claims of an
insufficient factual basis for a guilty plea are inconsistent.
In United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986), cited by
the government in its brief, see Br. for United States at 26, we refused to entertain
such a claim, ruling that it was non-jurisdictional and therefore waived by a
knowing and voluntary plea. Fairchild, however, did not cite or discuss a number
of prior cases in which we not only addressed such claims, but set aside guilty
pleas because of insufficient factual bases. See, e.g., United States v. Boatright,
588 F.2d 471, 475-76 (5th Cir. 1979); United States v. Johnson, 546 F.2d 1225,
1226-27 (5th Cir. 1977); United States v. Price, 538 F.2d 722, 723-24 (5th Cir.
1976); United States v. Vera, 514 F.2d 102, 103-04 (5th Cir. 1975). To make
matters more confusing, our cases after Fairchild have continued to diverge.
Compare, e.g., United States v. Johnson, 89 F.3d 778, 784 (11th Cir. 1996) (citing
Fairchild and holding that a claim that “there was no factual basis” was barred by
the defendant’s guilty plea), with, e.g., United States v. Owen, 858 F.2d 1514, 1516
(11th Cir. 1988) (rejecting, on the merits, a claim that there was an insufficient
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factual basis for a guilty plea), and United States v. Camacho, 233 F.3d 1308, 1317
(11th Cir. 2000) (same).
Our prior panel precedent rule requires that, where there are two or more
inconsistent circuit decisions, we “follow the earliest one.” Hurth v. Mitchem, 400
F.3d 857, 862 (11th Cir. 2005). We therefore follow Vera, Price, Johnson, and
Boatright, all of which predated Fairchild, and address Mr. Puentes-Hurtado’s
claim that there was an insufficient factual basis for his plea to the narcotics
conspiracy charge.
Normally, “[t]he standard for evaluating [such a claim] is whether the
[district] court was presented with evidence from which it could reasonably find
that the defendant was guilty.” United States v. Lopez, 907 F.2d 1096, 1100 (11th
Cir. 1990). But, as explained above, we are reviewing only for plain error.
Keeping in mind that 21 U.S.C. § 846 does not contain an overt act
requirement, see United States v. Shabani, 513 U.S. 10, 15 (1994), we reject Mr.
Puentes-Hurtado’s contention that there was plain error with respect to the factual
basis for Count 1. First, the government’s proffer indicated that the “conspiracy of
which [Mr. Puentes-Hurtado] was a part involved a Mexican drug trafficking
organization[.]” D.E. 410 at 10. Second, that proffer also described Mr. Puentes-
Hurtado’s role in the drug trafficking organization: “And the way [Mr. Puentes-
Hurtado] fits into the conspiracy is he was responsible for the transportation of the
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cocaine from Mexico to Atlanta, and then for transporting bulk currency proceeds
of the sales of the cocaine and undetermined amounts of meth[amphetamine] back
to Mexico using used cars to hide the money that was being transported back to
Mexico.” Id.
We recognize, of course, that Mr. Puentes-Hurtado agreed only to “most” of
the government’s proffer, and that the district court did not question him further on
which portions of the proffer he disagreed with. But Mr. Puentes-Hurtado also told
the district court under oath that he was guilty of the charge in Count 1, see id. at
13, and he signed a plea agreement in which he “admit[ted] he was pleading guilty
because he [was] in fact guilty of the crimes charged in Counts [1 and 3].” D.E.
338 at 1. Even assuming that the record could be read in such a way that Mr.
Puentes-Hurtado only admitted to physically transporting the drug proceeds, such
transportation was a necessary part of the drug trafficking scheme, and knowing
participation in a conspiracy can be shown “through proof of surrounding
circumstances, such as acts committed by the defendant that furthered the purpose
of the conspiracy.” United States v. Matthews, 168 F.3d 1234, 1245 (11th Cir.
1999). On this record, we cannot say that any deficiency in the factual basis for
Count 1 affected Mr. Puentes-Hurtado’s substantial rights.
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C
Finally, Mr. Puentes-Hurtado claims that the government breached the plea
agreement by relying on statements in his own proffer, which were protected by
U.S.S.G. § 1B1.8, to recommend a base offense level of 38 for the narcotics
conspiracy charge. He argues that, without these protected statements, there was
insufficient evidence to support a finding that he was responsible for 244
kilograms of cocaine. Stated differently, he contends that the government’s breach
of the plea agreement led the district court to commit procedural error in
calculating the advisory guideline range for the narcotics conspiracy charge.
Such a claim is normally subject to plenary review. See United States v.
Symington, 781 F.3d 1308, 1312 (11th Cir. 2015). But where, as here, the claim
was not preserved in the district court, the plain error standard applies. See Puckett
v. United States, 556 U.S. 129, 136, 141-43 (2009).
Even if we assume that the government breached the plea agreement (and
we do not hold that it did), Mr. Puentes-Hurtado cannot show that the breach (and
any resulting procedural error by the district court in the calculation of the advisory
guideline range) affected his substantial rights. There is nothing in the record to
indicate that Mr. Puentes-Hurtado would have received a different sentence had the
drug quantity attributable to him been substantially lower. To the contrary, the
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record shows that the district court would have imposed the same sentence even if
Mr. Puentes-Hurtado was responsible for only five kilograms of cocaine:
[T]he record should further reflect that this would have been the
court’s sentence even if the court got it wrong on the issue of five
kilos of cocaine versus 244 kilos of cocaine because . . . this is the
appropriate sentence either way[.]
D.E. 411 at 19. As a result, Mr. Puentes-Hurtado—who does not argue that his
180-month sentence was substantively unreasonable—is not entitled to relief on
this claim. See United States v. Pantle, 637 F.3d 1172, 1177-78 (11th Cir. 2011)
(where the record establishes a reasonable probability that the district court would
not have imposed a lower sentence, a defendant who alleges a procedural error
cannot demonstrate plain error).
IV
We affirm Mr. Puentes-Hurtado’s convictions and sentence.
AFFIRMED.
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