[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 11, 2009
No. 08-15719 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00391-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA CONCEPCION GRANADOS-GUTIERREZ,
a.k.a. Concha,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 11, 2009)
Before EDMONDSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
The United States charged Maria Granados-Gutierrez with conspiracy to
possess with the intent to distribute 1,000 kilograms or more of a mixture or
substance containing a detectable amount of marijuana. The District Court
accepted Defendant's guilty plea. Defendant now says that she did not sufficiently
admit her guilt and that there was no sufficient factual basis for the district court to
accept her plea. On the basis of waiver; we affirm.
Defendant twice transported a co-conspirator from Arizona to Las Vegas.
This co-conspirator had over 1,000 pounds of marijuana in his luggage between the
two trips. Another person would mail the marijuana from Las Vegas to Florida.
Defendant was arrested and pleaded guilty. At a plea hearing, before a
magistrate judge, some confusion arose about what facts Defendant was admitting.
At first, Defendant denied some of the government's facts. "Because-because the
statements that I gave to the agent was only that I took Arturo twice to Las Vegas,
but I was not aware of what he was doing. And I do feel guilty for having taken
him." After consulting with her lawyer at the hearing, Defendant said she would
accept the facts as presented by the government: that is, she knowingly transported
the marijuana.
The magistrate judge attempted to clarify the situation. The magistrate judge
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expressed concern that Defendant's admissions did not support the legal elements
of the offense. The government pointed to passages in Defendant's confessions
that indicated that the defendant knew the purpose of the trips and was well paid
for transporting the marijuana. Defendant reiterated her guilty plea and -- in an
extended colloquy -- admitted to all of the facts, including knowledge of the
marijuana in the luggage.
The magistrate judge explained the difference between a guilty plea and a
nolo contendere plea to Defendant. The magistrate judge also explained that the
district court was unlikely to accept a nolo contendere plea. After the explanation,
Defendant accepted the government's facts and agreed that she was making the
plea of her own free will, that she was not threatened into pleading guilty, and that
she was pleading guilty because she was, in fact, guilty.
In the magistrate judge's report and recommendation, the judge included a
notice which stated that the failure to file written objections to the report within 10
days "shall bar an aggrieved party from attacking such Report and
Recommendation before the assigned United States District Judge." Defendant did
not file an objection until she filed this appeal.
We review the district court's decision to accept a defendant's guilty plea for
plain error. United States v. Vonn, 122 S. Ct. 1043, 1046 (2002); United States v.
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Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
The government says that Defendant waived her right to appeal by not
properly challenging the magistrate judge’s report and recommendation under Fed.
R. Crim. P. 59(b)(2).
A waiver is "the intentional relinquishment or abandonment of a known
right." United States v. Olano, 113 S. Ct. 1770, 1777 (1993). When a party waives
a claim, we do not review the claim for plain error. United States v. Lewis, 492
F.3d 1219, 1221 (11th Cir. 2007) (en banc). Federal Rule of Criminal Procedure
59(b)(2) says that a party must file a written objection to a magistrate judge's report
and recommendation within 10 days; a failure to do so waives a party's right to
review. Fed. R. Crim. P. 59.
We require a magistrate judge to inform a party about the consequences of
not objecting. Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. Unit B 1982)(en
banc).* The magistrate judge, both at the hearing and in its report and
*
This court has adopted as binding all former Fifth Circuit cases decided before 1
October 1981, as well as all decisions issued after that date by a Unit B panel of the former Fifth
Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982). See United States v.
Schultz, 565 F.3d 1353, 1361 n.4 (11th Cir. 2009) (discussing the continuing validity of Nettles).
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recommendation, informed Defendant that she had ten days to object. Defendant
did not object in that time, and so she waived her right to challenge the guilty plea.
AFFIRMED.
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