United States v. Isabel Gonzalez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4834

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel Garcia,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)

Submitted: July 17, 2015 Decided: July 24, 2015

Before MOTZ, KING, and WYNN, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Isabel Gonzalez appeals his conviction and 365-month sentence

imposed pursuant to his guilty plea to conspiracy to import

cocaine. * On appeal, he asserts that his guilty plea was not

knowing or voluntary and that his sentence, imposed pursuant to

the mandatory Guidelines system, violated United States v. Booker,

543 U.S. 220 (2005). The Government asserts that Gonzalez’s

sentencing challenge is barred by the waiver of appellate rights

in his plea agreement. We affirm in part and dismiss in part.

Gonzalez first argues that his plea was involuntary because

the magistrate judge failed to explain to him during his plea

colloquy that he had a right to an appointed attorney at trial

when it became obvious that he had been abandoned by his lead

counsel. Gonzalez contends that his lead attorney declined to

continue representation when Gonzalez could not pay him and that

local counsel, who represented him at his guilty plea hearing, was

only paid a nominal fee and, therefore, had no incentive to go to

trial. The fee allegations were not raised until Gonzalez’s

collateral proceedings and were, therefore, not known to the

magistrate judge at the time of the plea colloquy.

* Gonzalez’s judgment was originally entered in 2001.
However, pursuant to his 28 U.S.C. § 2255 (2012) motion, the
district court re-entered judgment in 2014 to permit Gonzalez to
file a timely appeal.

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“In order for a guilty plea to be valid, the Constitution

imposes ‘the minimum requirement that [the] plea be the voluntary

expression of [the defendant’s] own choice.’” United States v.

Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Brady v.

United States, 397 U.S. 742, 748 (1970)). “It must reflect a

voluntary and intelligent choice among the alternative choices of

action open to the defendant.” Id. (citation and internal

quotations omitted). “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).

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). This court “accord[s] deference to the trial court’s

decision as to how best to conduct the mandated colloquy.” United

States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). A guilty

plea may be knowingly and intelligently made based on information

received before the plea hearing. See id.; see also Bradshaw v.

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Stumpf, 545 U.S. 175, 183 (2005) (trial court may rely on counsel’s

assurance that the defendant was properly informed of the elements

of the crime).

When, as here, a defendant does not seek to withdraw his

guilty plea in the district court, we review any claims that the

court erred at his guilty plea hearing for plain error. United

States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002). It is

Gonzalez’s burden to show (1) error; (2) that was plain;

(3) affecting his substantial rights; and (4) that this court

should exercise its discretion to notice the error. See id. at

529. For prejudice, he “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).

Here, Gonzalez was informed that he was entitled to the

assistance of counsel should he wish to go to trial, and he

testified that he was satisfied with his attorney. He was given

the opportunity to make statements or ask questions, and he

declined to do so. In addition, the magistrate judge specifically

discussed the details of the situation involving Gonzalez’s

retained and local counsels to which the judge was privy; Gonzalez

was fully informed regarding the status of his counsel, and he

testified that he was completely satisfied. Moreover, he

reiterated his satisfaction in the written “Entry and Acceptance

of Guilty Plea.” Under such circumstances, the magistrate judge

4
did not err (much less plainly err) in accepting Gonzalez’s guilty

plea without further inquiry into his relationship with his

attorney.

Next, Gonzalez contends that the magistrate judge erred by

failing to determine whether Gonzalez read and signed his plea

agreement prior to the Rule 11 hearing with the aid of a Spanish

interpreter. Gonzalez avers that this error was compounded by the

fact that the district court did not explain the concept of

conspiracy in detail and that the case was very complex.

At the Rule 11 hearing with the aid of a Spanish interpreter,

Gonzalez stated that he discussed the contents of the indictment

with his attorney and that he fully understood the charges. His

attorney stated that she had reviewed the charges with Gonzalez

and was confident that he fully understood. Gonzalez declined to

have the indictment read to him. Moreover, when the judge

discussed the plea agreement, he provided the elements of the

charged conspiracy to Gonzalez.

We conclude that the magistrate judge did not commit plain

error in failing to further examine Gonzalez regarding his

understanding of the charges against him. There was simply nothing

in the Rule 11 hearing alerting the judge to any lack of

understanding on Gonzalez’s part requiring additional colloquy.

Both Gonzalez and counsel stated that Gonzalez had been informed

of the elements and understood them. Moreover, while Gonzalez now

5
argues that he would have gone to trial, he does not explain how

his alleged lack of understanding of the charges against him caused

him to plead guilty. Under these circumstances and further given

the lack of any showing of any prejudice, we determine that the

magistrate judge did not plainly err in failing to more fully

explore Gonzalez’s English language competency.

Finally, Gonzalez argues that the district court erred in

treating the Guidelines as mandatory. The Government contends

that Gonzalez waived the right to challenge his sentence. Gonzalez

avers that the waiver was invalid given his short responses during

the Rule 11 hearing and the lack of information as to the presence

of an interpreter when the plea agreement was explained to him.

A defendant may waive the right to appeal if that waiver is

knowing and intelligent. United States v. Blick, 408 F.3d 162,

169 (4th Cir. 2005); United States v. Broughton-Jones, 71 F.3d

1143, 1146 (4th Cir. 1995) (determining whether a waiver is knowing

and intelligent by examining the background, experience, and

conduct of the defendant). Generally, if the district court fully

questions a defendant regarding the waiver of his right to appeal

during the Rule 11 colloquy, the waiver is both valid and

enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005). The question of whether a defendant validly waived

his right to appeal is a question of law that we review de novo.

Blick, 408 F.3d at 168.

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Here, the district court fully complied with the requirements

of Rule 11 during the plea colloquy and ensured that Gonzalez

understood he was waiving his right to appeal his sentence.

Gonzalez stated, with the aid of an interpreter, that he understood

on more than one occasion. Accordingly, we find that Gonzalez’s

waiver of appellate rights was knowing and intelligent. A plea

agreement’s appellate waiver accepted prior to Booker is not

invalidated by the Booker decision. Id. at 170-73; see also

Johnson, 410 F.3d at 150-52 (rejecting the argument that a

defendant cannot waive the right to an appeal based on subsequent

changes in the law). Thus, we conclude that Gonzalez’s appellate

waiver is valid and enforceable and that Gonzalez’s sentencing

argument is within the scope of that waiver. See Blick, 408 F.3d

at 170 (holding that Booker claim is one that relates to the manner

in which a sentence is imposed).

Based on the foregoing, we affirm Gonzalez’s conviction and

dismiss the appeal of his sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART;
DISMISSED IN PART