UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5164
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JORGE ROSA RODRIGUEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00089-WO-1)
Argued: March 22, 2012 Decided: April 24, 2012
Before SHEDD, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion
in which Judge Keenan and Judge Floyd joined.
ARGUED: Timothy P. O'Toole, MILLER & CHEVALIER, CHARTERED,
Washington, D.C., for Appellant. Randall Stuart Galyon, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Marie Park, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Two undercover agents arranged the exchange of a U-Haul
truck filled with marijuana for firearms and cash. Following
the exchange, state police stopped the U-Haul truck for
speeding. After a positive drug dog alert on the van, the
police arrested Jorge Rodriguez, who waived his Miranda rights
and admitted possession of the drugs. Rodriguez pled guilty to
possession with intent to distribute 505.9 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B),
and to possession of a short-barreled rifle and other firearms
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(B)(i). Rodriguez raises four issues on
appeal. We discuss each issue below but find none to have
merit. Therefore, for the reasons below, we affirm the judgment
of the district court.
I.
A.
First, Rodriguez alleges that the delay between his arrest
on state charges on March 25, 2009, and his federal indictment
on March 29, 2010, constitutes a violation of the Speedy Trial
Act. Rodriguez raises this issue for the first time on appeal;
he did not file a pre-trial motion to dismiss the indictment or
information. Thus, Rodriguez has waived his speedy trial claim.
See 18 U.S.C. § 3162(a)(2)(“Failure of the defendant to move for
2
dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dismissal
under this section.”).
B.
Second, Rodriguez challenges the sufficiency of his Rule 11
plea colloquy on various grounds. Rodriguez did not move to
withdraw his plea, nor did he raise any objections to the
colloquy in the district court. Thus, we review his claims for
plain error. See United States v. Martinez, 277 F.3d 517, 525-
526 (4th Cir. 2002).
The Supreme Court has given the following instruction on
plain error review:
[A]n appellate court may, in its discretion, correct
an error not raised at trial only where the appellant
demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant's
substantial rights, which in the ordinary case means
it affected the outcome of the district court
proceedings; and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.
United States v. Marcus, ––– U.S. ––––, ––––, 130 S.Ct. 2159,
2164 (2010) (internal punctuation and citation omitted). “[T]he
burden of establishing entitlement to relief for plain error is
on the defendant claiming it,” United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004), and “[m]eeting all four prongs
is difficult, as it should be,” Puckett v. United States, 556
3
U.S. 129, 135 (2009) (internal punctuation and citation
omitted).
We hold that even assuming the district court committed the
various errors alleged by Rodriquez, such errors did not affect
Rodriguez’s substantial rights. Rodriguez has not demonstrated
that but for the alleged errors, he would not have entered his
guilty plea. See Martinez, 277 F.3d at 532 (the defendant “must
demonstrate that, absent the Rule 11 errors, he would not have
entered into his plea agreement”). Moreover, Rodriguez’s own
statements during sentencing contradict such an assertion. He
specifically admitted his guilt and said: “I don’t want to go
to trial. I don’t want any more trial.” See J.A. 32. Thus,
Rodriguez has not established that the district court committed
plain error during his Rule 11 plea colloquy.
C.
Third, Rodriguez claims that the district court incorrectly
calculated the drug quantity attributable to him, despite the
fact that he inspected the quantity of drugs before he finalized
the transaction. Rodriguez did not object to the drug quantity
in the district court. Therefore, we review this claim for
plain error. See Martinez, 277 F.3d at 525-526.
In making this argument, Rodriguez primarily relies upon a
legal theory he calls sentencing entrapment, under which he
claims the government gave him more drugs than he expected for
4
the sole purpose of enhancing his sentence. He cites no case
law in support of this theory and concedes that this Court has
never recognized claims of sentencing entrapment. See
Appellant’s Br. at 23-25. Thus, we hold that the district court
did not commit plain error in calculating Rodriguez’s drug
quantity and, specifically, it did not commit plain error in
failing to give Rodriguez relief under a sentencing entrapment
theory. See United States v. Beasley, 495 F.3d 142, 149–50 (4th
Cir. 2007) (rejecting plain error argument where there “was no
controlling ‘current law’ in this circuit” at the time of
sentencing “nor is there any today”).
D.
Finally, Rodriguez asserts a claim of ineffective
assistance of counsel. Ineffective assistance of counsel is a
claim that this Court “may address on direct appeal only if the
lawyer’s ineffectiveness conclusively appears from the record.”
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
We find that the record does not conclusively establish
ineffective assistance and, thus, we decline to address the
issue on direct appeal.
II.
For the foregoing reasons we affirm the judgment of the
district court.
AFFIRMED
5