In Re SEALED CASE

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2011 Decided December 9, 2011

No. 09-3116

IN RE: SEALED CASE

______

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00233-1)
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Before: ROGERS, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Appellant and a co-defendant were
extradited from Panama following their indictment on one count
of conspiracy to distribute five kilograms or more of cocaine,
intending or knowing that it would be imported into the United
States from Columbia, Panama, Nicaragua, and elsewhere
outside of the United States. Appellant pleaded guilty and
received a below-Guidelines sentence of 84 months’
imprisonment (and 36 months’ supervised released). On appeal,
he contends that the district court lacked jurisdiction; venue was
improper; his guilty plea was not knowing, intelligent, and
voluntary; and he was denied the effective assistance of counsel.
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He also contends that his sentence was unreasonable. None of
appellant’s challenges to his conviction succeed.

The district court had jurisdiction over the charged
conspiracy because appellant’s extradition conformed with the
governing treaty between the United States and Panama, and
appellant waived his venue challenge by not raising it in the
district court. Appellant identifies no plain error affecting his
substantial rights in the district court’s acceptance of his guilty
plea. Further, appellant fails to show he was denied effective
assistance of counsel as would entitle him to reversal of his
conviction. Because appellant presents no grounds for setting
aside the judgment based on his guilty plea, the waiver of his
right to appeal a below-Guidelines sentence set forth in the plea
agreement is valid. Accordingly, we dismiss the appeal of his
sentence and affirm the judgment of conviction.

I.

In November 2004, appellant was negotiating with a
confidential source (“CS”) to arrange for the importation of
heroin and cocaine into the United States. From then until April
2006, appellant regularly communicated with the CS by
telephone and e-mail. Appellant advised the CS of his contacts
with Colombian paramilitaries and their interest in exchanging
cocaine for weapons. In June 2005, appellant introduced the CS
to a heroin supplier at a videotaped meeting in Honduras; the
three men agreed to conduct a drugs-for-weapons exchange in
the near future. Appellant met the CS again in November 2005,
in Nicaragua, where the CS conducted a “weapons flash” and
appellant took digital pictures to show his paramilitary contacts.

At a meeting in Colombia in February 2006, appellant
introduced the CS to some of his paramilitary contacts,
including his co-defendant (hereinafter “Doe”), who represented
 3

a cocaine supplier associated with the paramilitaries. Appellant
told Doe that he had seen the weapons in November, and Doe
reached an agreement with the CS to deliver several hundred
kilograms of cocaine in exchange for the weapons. Doe and the
CS thereafter confirmed the details of the exchange by telephone
and discussed transporting the cocaine from Columbia to Las
Vegas and Chicago, among other locations in the United States.
Doe told appellant he was planning to sell 500 kilograms to the
CS outright, on which he would pay appellant a commission of
$100 per kilogram, and to provide the CS an additional 200
kilograms on credit, on which he would pay appellant a
commission of $200 per kilogram. Appellant later discovered
Doe planned to sell the CS 700 kilograms outright, for a total of
900 kilograms of cocaine.

Pursuant to their agreement, Doe sent an associate
(hereinafter “Moe”) to meet with the CS in Nicaragua on March
29, 2006, and view the weapons. Moe called the CS to inform
him of his arrival in Nicaragua, saying he was calling on
appellant’s behalf. Following an inspection of the weapons,
Moe informed Doe that they were acceptable. On March 31,
2006, and April 1, 2006, the CS and an undercover Panamanian
law enforcement officer met with appellant, Doe, and Moe in
Panama, where the cocaine was available for delivery, to discuss
the weapons-for-drugs exchange. On April 5, 2006, Panamanian
officials took appellant, Doe, and Moe into custody pursuant to
a provisional arrest warrant submitted by the U.S. Department
of State to the Republic of Panama.

A federal grand jury in the District of Columbia indicted
appellant, Doe, Moe and two other individuals on April 25,
2006, on one count of conspiracy to distribute five kilograms or
more of cocaine, intending or knowing that it would be
unlawfully imported into the United States from the Republics
of Colombia, Panama, Nicaragua, and elsewhere outside of the
 4

United States, in violation of 21 U.S.C. § 963, in conjunction
with 21 U.S.C. §§ 959(a)(1), 960, and 18 U.S.C. § 2. On June
1, 2006, the U.S. Department of Justice sent documents
formalizing the requests for extradition of appellant, Doe, and
Moe to the State Department for immediate submission to the
appropriate Panamanian authorities. Appellant and Doe were
brought to the United States and arraigned in the district court
on October 9, 2007, and January 15, 2008, respectively. Two
weeks before his scheduled trial date, appellant entered into a
plea agreement with the government.

Pursuant to Rule 11 of the Federal Rules of Criminal
Procedure, the district court held a hearing in which appellant
participated with the assistance of court-appointed counsel and
a court-certified interpreter. When the district court inquired if
appellant had been given a written Spanish translation of the
plea agreement, defense counsel advised that appellant had not
but explained that he and appellant “went through the factual
proffer fairly in detail,” Plea Hr’g Tr. 5, July 30, 2008, with the
assistance of a court-certified interpreter, the day before the Rule
11 hearing. They met again with the interpreter in the cell block
the morning of the hearing to review amendments to the plea
agreement. Defense counsel further advised the district court
that he and appellant “went over the plea agreement in terms of
the meanings of the particular paragraphs and sometimes
verbatim translations of the particular paragraphs, as well as a
review of the facts,” and that he believed appellant was
“comfortable with both” the plea agreement and the statement
of facts “and signed them.” Id. at 5. The district court then
emphasized to appellant that it would be willing to answer his
questions at any time. Speaking through an interpreter,
appellant told the district court that he was satisfied with defense
counsel’s services and that his counsel had “explained things to
[him],” “kn[ew] all about [his] part in all this,” and had “helped
[him] with the translations and in making [him] understand the
 5

process.” Id. at 9. The district court inquired about any
medications appellant might have taken that day; appellant
stated that he had taken one pill to help him sleep, another for
sleep-related anxiety, and another for his blood pressure, and
when the district court inquired, he affirmed that he felt alert and
could pay attention during the hearing, id. at 8.

After reviewing the government’s factual proffer with
appellant, the district court explained the terms of the plea
agreement. The district court advised appellant that he would be
sentenced to a minimum of ten years’ imprisonment and a
maximum of life imprisonment, and that he also could be fined.
The district court, appellant, and his counsel also discussed the
likelihood that appellant would be deported upon release from
prison and the relationship between his deportation and any
period of supervised release the district court might order. The
district court summarized the factors it would consider in
determining his sentence and noted the possibility that his
Guidelines sentencing range could change prior to sentencing.
It then explained to appellant the significance of the waiver of
his right to appeal a sentence below the statutory maximum;
when asked if this explanation of the waiver was clear, appellant
indicated it was.

As part of the Rule 11 colloquy, the district court inquired
whether appellant was entering the plea agreement of his own
free will, and appellant explained that his decision to do so
related to his co-defendant Doe’s decision to plead guilty, but
that he also “want[ed] to cooperate in everything [he] [could].”
Id. at 28. Then, after appellant assured the district court that no
one had tried to threaten or force him into entering the plea
agreement, the district court accepted his guilty plea as
intelligent and voluntary.
 6

Before the hearing concluded, appellant renewed his request
to be moved to another facility, reminding the district court that
he had been attacked at the D.C. Jail and that he feared for his
safety. The government, which for security reasons had
opposed a transfer to the Corrections Treatment Facility
(“CTF”) where his co-defendant Doe was being housed,
withdrew its opposition because “both [appellant] and [Doe]
[were] cooperating.” Id. at 30–31.

Over five months later, on January 8, 2009, appellant filed
two pro se motions requesting the appointment of new counsel.
In his first motion, appellant claimed that he had received
ineffective assistance of counsel because counsel had been too
busy to attend to his case, and that he “was forced to sign a plea
agreement without knowing fully what it meant” because
defense counsel had not provided him with a copy of the plea
agreement in Spanish. Mot. for Sixth Am. Violation Ineffective
Assist. Counsel 1. He also suggested that in return for his plea
he had been “offered to be taken out of solitary confinement at
D.C. Jail and transferred to CTF” after having been “put in
protective custody after an assassination attempt.” Id. In his
second motion, appellant claimed that defense counsel, in a
possible conflict of interest, had allowed co-defendant Doe’s
counsel to question him about a 1998 incident, after which Doe
decided to plead guilty and testify against him. Mot. for Sixth
Am. Violation Conflict Interest 1. The district court appointed
new counsel while “making no decision at [that] point about
[his] plea” and emphasizing that the appointment of new counsel
did not “mean[] that there [would] be any kind of automatic
granting of a request . . . to withdraw [his] plea.” Status Conf.
Tr. 12–13, Jan. 15, 2010.
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On October 21, 2009, the district court sentenced appellant
to 84 months’ imprisonment, followed by 36 months’ supervised
release.1

II.

As a threshold matter, appellant contends that the district
court lacked jurisdiction over his case because his arrest and
extradition to the United States violated the governing
extradition treaty. Specifically, he contends that his extradition
did not conform to the method of delivering a prisoner to the
United States prescribed in Article IV, as required by Article I,
of the Treaty Between the United States and Panama for the
Mutual Extradition of Criminals, U.S.-Pan., May 25, 1905, 34
Stat. 2851 (“Extradition Treaty”). He also contends that his
extradition violated the doctrine of “dual criminality,” which
allows extradition only if the charged conduct is considered
criminal in both jurisdictions. See United States v. Sensi, 879
F.2d 888, 893 (D.C. Cir. 1989).

1
From a base offense level of 38, appellant received a two-
level reduction for acceptance of responsibility, and an additional two-
level reduction under the “safety valve provision,” U.S.S.G.
§ 5C1.2(a). The district court denied appellant a two-level reduction
for being only a “minor participant” in the conspiracy, reasoning that
he had been involved in the conspiracy for a longer period of time
than his co-defendant Doe and had served as the “bridge” connecting
the CS to Doe and other participants. Appellant’s Guidelines range
was thus 151–188 months. The government moved for an additional
three-level departure for substantial assistance, reducing the
Guidelines range to 108–135 months. Upon considering the factors
in 18 U.S.C. § 3553(a), the district court sentenced appellant to 90
months’ imprisonment, with credit for time served here and in
Panama, thus arriving at a sentence of 84 months’ imprisonment, with
36 months’ supervised release.
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The Extradition Treaty provides that the United States and
Panama “mutually agree to deliver up persons who, having been
charged with or convicted of any of the crimes and offenses
specified . . . , committed within the jurisdiction of one of the
contracting parties, shall . . . be found within the territories of
the other.” Extradition Treaty art. I. Where the United States
seeks the “arrest and detention of a fugitive” in Panama before
“the presentation of formal proofs,” “the proper course shall be
to apply to the Foreign Office, which will immediately cause the
necessary steps to be taken in order to secure the provisional
arrest or detention of the fugitive.” Id. art IV. The United States
must then submit a formal requisition for the surrender of the
prisoner, supported by evidence, within two months of the
prisoner’s arrest; otherwise, the prisoner must be released. See
id. Both the Republic of Panama and the United States are also
parties to the United Nations Convention Against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances, opened for
signature Dec. 20, 1988, 1582 U.N.T.S. 95 (“U.N. Drug
Convention”), under which signatories agreed to establish as a
criminal and extraditable offense the conspiracy to distribute
narcotic drugs such as cocaine, see id. art. 3, ¶ 1, art. 6, ¶ 2.

The record, as supplemented, indicates by all appearances
that appellant was taken into custody pursuant to a provisional
arrest warrant submitted to Panamanian government officials,
and that the U.S. government submitted formal documentation
in support of his extradition from Panama within two months of
the arrest. Appellant identifies no irregularities in his arrest or
extradition that would suggest nonconformity with the method
prescribed in the Extradition Treaty. Further, appellant’s
extradition did not violate the doctrine of “dual criminality”
because the charged conduct — conspiracy to distribute cocaine
— was a criminal and extraditable offense in Panama, a
signatory to the U.N. Drug Convention. See U.N. Drug
Convention art. 3, ¶ 1, art. 6, ¶ 2. Therefore, appellant’s
 9

jurisdictional challenges are without merit. Appellant has
waived his challenge to venue in the District of Columbia by
failing to raise it in the district court, see United States v.
Gartmon, 146 F.3d 1015, 1029 (D.C. Cir. 1998); United States
v. Gaviria, 116 F.3d 1498, 1517 & n.22 (D.C. Cir. 1997); United
States v. Wilson, 26 F.3d 142, 151 (D.C. Cir. 1994).

III.

Rule 11 of the Federal Rules of Criminal Procedure
“prescribes a procedure ‘designed to assist the district court
judge in making the constitutionally required determination that
a defendant’s guilty plea is truly voluntary . . . [and] to produce
a complete record at the time the plea is entered of the factors
relevant to this voluntariness determination,’” United States v.
Dewalt, 92 F.3d 1209, 1211–12 (D.C. Cir. 1996) (quoting
McCarthy v. United States, 394 U.S. 459, 465 (1969)), thereby
“‘eliminat[ing] any need to resort to a later [i.e., post-
conviction] factfinding proceeding in [the] highly subjective
area of voluntariness,’” id. at 1212 (second and third alterations
in original) (quoting McCarthy, 394 U.S. at 469). After a
sentence is imposed, the defendant may not withdraw his plea;
rather, “the plea may be set aside only on direct appeal or
collateral attack.” FED. R. CRIM. P. 11(e). Any variance from
the requirements of Rule 11 is harmless error unless it “affects
substantial rights.” Id. 11(h). Where a defendant raises Rule 11
error for the first time on appeal, review is for plain error.
United States v. Dominguez Benitez, 542 U.S. 74, 80 (2004)
(citing United States v. Vonn, 535 U.S. 55, 63 (2002)); see also
United States v. Olano, 507 U.S. 725, 731–37 (1993). Unless
the error — even one “preserved” by objection in the district
court — is “structural,” it can result in reversal of a conviction
only if it affected the outcome of the proceeding. Dominguez
Benitez, 542 U.S. at 81. The defendant must demonstrate a
 10

“reasonable probability that, but for the error, he would not have
entered” a guilty plea. Dominguez Benitez, 542 U.S. at 83.

On appeal, appellant contends that his guilty plea was not
knowing, intelligent, or voluntary because he was never
provided a written translation of the plea agreement in Spanish,
his native tongue; “he was under the duress and coercive effect
of being housed in a detention facility where” he had suffered a
knife attack, “knowing that as soon as he pleaded guilty he
would be moved out of that facility,” Appellant’s Br. 21; and the
district court was required to conduct a more searching inquiry
into the nature and effects of the medications he had taken on
the day he entered his plea. He also identifies two points during
the plea colloquy that he contends reveal his general lack of
understanding: his question regarding the relationship between
his likely deportation and any period of supervised release the
district court might order, and his apparent confusion over the
difference between a reduction below the statutory minimum
sentence and a departure from the Guidelines sentencing range.

At no point has appellant contended that, but for the Rule 11
errors he asserts the district court committed, he would not have
pleaded guilty. Nor does appellant identify any provision of the
plea agreement he would not have accepted. The alleged errors
thus “did not affect the outcome of the district court
proceeding,” Dewalt, 92 F.3d at 1213, and are harmless, see
FED. R. CRIM. P. 11(h). Appellant therefore fails to demonstrate
that he is entitled to reversal of his plea-based conviction on the
ground that the district court plainly erred under Rule 11. This
is so even treating appellant’s claims as constitutional in nature
— going to the knowing and voluntary element of his guilty plea
— because he does not argue his claims are of “structural” error.
See Dominguez Benitez, 542 U.S. at 81; cf. United States v.
Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006).
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IV.

“‘A plea is not voluntary or intelligent,’ and therefore
unconstitutional, ‘if the advice given by defense counsel on
which the defendant relied in entering the plea falls below the
level of reasonable competence.’” United States v. Taylor, 139
F.3d 924, 929 (D.C. Cir. 1998) (quoting United States v.
Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990)). Appellant’s
contention that his plea was not voluntary and intelligent
because he was denied his Sixth Amendment right to the
effective assistance of counsel is evaluated under the two-
pronged test of Strickland v. Washington, 466 U.S. 668 (1984).
See United States v. Hanson, 339 F.3d 983, 990 (D.C. Cir.
2003). Appellant must show both “that his counsel’s
performance ‘fell below an objective standard of
reasonableness,’” Taylor, 139 F.3d at 929 (quoting Strickland,
466 U.S. at 687–88), and “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,” id. at 929–30
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). See also
United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000).

As with his Rule 11 contentions, appellant fails to assert —
let alone demonstrate — a reasonable probability that, but for
initially appointed defense counsel’s purported errors, he would
not have pleaded guilty. Rather, appellant appears to suggest he
would have pleaded sooner than his co-defendant Doe had
defense counsel provided him with a written Spanish translation
of the plea agreement, consulted with him more frequently, and
protected him from questioning by his co-defendant Doe’s
counsel. “At a minimum,” appellant contends, defense counsel
“should have negotiated a joint plea,” Appellant’s Br. 26–27,
thereby denying the co-defendant the “tactical advantage” he
enjoyed at sentencing as a result of his earlier plea, id. at 25.
Yet in articulating his request for new appointed counsel,
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appellant told the district court that although “there were certain
matters that [he] want[ed] to clear up in terms of the procedure,”
he “always wanted to cooperate with the prosecution” and with
“the government of the United States.” Status Conf. Tr. 14, Jan.
15, 2010. From the time of his initial request for new counsel
through this appeal, appellant has never suggested that he would
not have pleaded guilty had initially appointed defense counsel
provided more satisfactory assistance. Therefore, his ineffective
assistance claim necessarily fails the second prong of the
Strickland test.

V.

“A defendant may waive his right to appeal his sentence as
long as his decision is knowing, intelligent, and voluntary.”
United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).
During the Rule 11 hearing, appellant confirmed his
understanding that in pleading guilty he would waive his right
to challenge the reasonableness of his sentence on appeal unless
it exceeded the Guidelines range. Because appellant has shown
no procedural or constitutional defect in the district court’s
acceptance of his guilty plea, appellant’s waiver is valid and the
appeal of his below-Guidelines sentence is foreclosed.

Accordingly, we dismiss the appeal of appellant’s sentence
and affirm the judgment of conviction.