United States v. Abreo

                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

              _____________________________________

                           No. 93-2423
              _____________________________________

                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                VERSUS

                            DARIO A. ABREO,

                                                   Defendant-Appellant.

     ______________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
     ______________________________________________________
                         (August 10, 1994)
Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

     Appellant, Dario Abreo, pled guilty to money laundering in

violation of 18 U.S.C. § 1956(a)(1)(A).       He contends that 1) the

district court did not comply with Rule 11(d); 2) his plea was not

voluntary; and 3) the district court erroneously increased his base

offense level.   After careful review of these contentions, we

affirm Abreo's conviction and sentence.

                              BACKGROUND

     Based on a tip from a confidential informant, law enforcement

officers engaged in surveillance of Abreo's residence.            After

observing suspicious behavior, the officers executed a search

warrant on Abreo's residence.       They found, among other items,

various documents, some of which were identified as drug ledgers

and money laundering records.     Abreo and Hugo DeJesus Velez were
taken into custody.

      A grand jury returned a one-count indictment against Abreo and

Velez, charging the two with money laundering in violation of 18

U.S.C. § 1956(a)(1)(A).       Pursuant to a plea agreement, Abreo

pleaded guilty.    The district court sentenced Appellant to 114

months in prison and 3 years of supervised release and ordered him

to pay the mandatory $50 special assessment.     Abreo appeals.

                              DISCUSSION

I.   Compliance with Rule 11(d)

      Abreo contends that the district court did not comply with

Rule 11(d) and insure that his plea was not motivated by threats

from his codefendant, Velez. Federal Criminal Procedure Rule 11(d)

provides in pertinent part:

           The court shall not accept a plea of guilty or nolo
      contendre without first, by addressing the defendant
      personally in open court, determining that the plea is
      voluntary and not the result of force or threats or of
      promises apart from a plea agreement.

      At the plea colloquy, the district court asked Appellant if

anyone had attempted in any way to force him to plead guilty.

Abreo responded negatively.    Such testimony in open court carries

a strong presumption of verity.       See Blackledge v. Allison, 431

U.S. 63, 74 (1977).   The district court's questions satisfied the

requirements of Rule 11(d).

      Abreo argues that the district court should have made a more

searching inquiry into whether his plea was voluntary.     The trial

court received, however, no objective information at the plea

colloquy that would have reasonably put it on notice that further


                                  2
inquiry was needed. Reference to the alleged threats did not occur

until Abreo's sentencing hearing after he had already entered his

plea.1   Thus, the trial court had no duty to undertake a more

searching inquiry at the plea colloquy.      Cf. United States v.

Daniels, 821 F.2d 76, 79 (1st Cir. 1987) (defendant's reluctant

responses suggested to the trial court that defendant's plea might

not be voluntary, and the trial court should have undertaken a more

searching inquiry); United States v. Cole, 813 F.2d 43, 46 (3d Cir.

1987) (after the district court had been informed that defendant

had recently ingested drugs, the district court should have made

further inquiry into defendant's competence to enter a guilty

plea).

II.   Voluntariness of Plea

      Next, Abreo argues that his plea was not voluntary because he

mistakenly believed that he had the right to challenge the validity

of his arrest and the search of his house after entering his plea.2

Abreo complains that the following exchange with the district court

led him to believe that he had preserved his right to litigate his

suppression claim:


1
   At the sentencing hearing, Abreo neither moved the court to
withdraw his plea nor suggested to the court that he objected to
the voluntariness of his plea.     The testimony concerning the
alleged threats was offered in an effort to obtain leniency from
the district court in sentencing. The district court determined
that Abreo's plea was voluntary at the plea colloquy, and we will
not impose a duty on the district court to reconsider sua sponte
the voluntariness of a plea at the sentencing hearing when the
defendant has made no objection.
2
    Abreo concedes that he did not enter a conditional        plea
preserving his right to appeal his suppression claim.

                                 3
     The Defendant: Before pleading guilty, I want to say Your
Honor, that at the time I was arrested, I never saw an arrest order
in my name and I never saw a search order for my house. If Your
Honor allows me, and if you don't understand me, I'll explain
again.

     The Court:   I understand.

     The Defendant:    That's all I have to say.        I hope it's
written down in the transcript.

     The Court:   Okay.   Your lawyer filed papers that he feels
should have been filed in connection with the search of your home.
Do you understand that?

     The Defendant:   I've never seen them.

     The Court: They have been filed. Take my word for it.3
     You've discussed this case with your lawyer, have you not?

     The Defendant:   I mentioned it to him once.   That was all.

     The Court:   Mr. Abreo, do you want to plead guilty this
morning or do you want to go to trial?

     The Defendant:   No, I want to plead guilty because I know what
I've been doing.

     Abreo primarily relies on two Ninth Circuit cases, United

States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986), and United

States v. Cortez, 973 F.2d 764 (9th Cir. 1992).     In Carrasco, the

government expressly offered the defendant a conditional plea. 786

F.2d at 1453. The government withdrew its offer of the conditional

plea, but the defendant nonetheless filed notice that her plea was

conditional and appealed the issue that would have been preserved

if the conditional plea agreement had been in force.    Id. at 1455.

The Ninth Circuit Court held that given an ambiguous exchange at

3
  Abreo argues that his counsel did not file a suppression motion.
Abreo's counsel filed a motion, however, adopting all motions filed
by his codefendant, Velez, and Velez filed a motion to suppress.
Although the government challenged Abreo's standing, Abreo's claim
was preserved for the purpose of litigating his suppression claim.

                                  4
the plea hearing and the defendant's prior discussions with the

government, the defendant could have reasonably believed that her

plea was conditional.          Id.     Thus, the court vacated the plea as

involuntary.        Id.     In Cortez, at a hearing prior to trial, the

district court explicitly told the defendant that he had the right

to make a selective prosecution motion even after pleading guilty.

973    F.2d    at   768.       The     defendant        subsequently    entered    an

unconditional plea.          The government later informed the defendant

that his claim could not be raised after pleading guilty.                    Id.   The

defendant unsuccessfully sought to withdraw his guilty plea and

enter a conditional plea.            Id.   The court of appeals concluded that

in light of the misrepresentations given to defendant, he could

have   reasonably         believed    that       he   had   preserved   a   selective

prosecution claim, and his plea could not be voluntary.                      Id.

       The facts of Abreo's case are easily distinguished from those

of Cortez and Carrasco.               Unlike Cortez and Carrasco, neither

Abreo's counsel, the government nor the district court explicitly

misrepresented to Abreo that he could preserve his suppression

claim after pleading guilty.4              Although the district court did not

expressly advise Appellant that by pleading guilty he would be

waiving his right to challenge his suppression claim, neither Rule

11 nor our decisional law commands the district court to offer that

warning.      See United States v. Bell, 966 F.2d 914, 917 (5th Cir.

4
   In fact, we do not find the plea colloquy to be as ambiguous as
Abreo contends. As we read the transcript, the district court was
merely informing Abreo that his attorney had filed the papers
necessary for a suppression hearing, and if he chose to go to
trial, he could pursue that challenge.

                                             5
1992).     Further, Abreo signed an unambiguous plea agreement that

made no mention of a preservation of his right to pursue a

suppression claim.    Such a document is accorded great evidentiary

weight.     See Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.

1985), cert. denied, 474 F.2d 838 (1985).       Finally, unlike the

defendants in Carrasco and Cortez, Abreo neither challenged his

arrest or search at any time after entering his plea nor did he

indicate in any manner that he believed his plea to be conditional.

Appellant's contention that he believed he had a right to have his

suppression claim litigated is undermined by a lack of subsequent

action.    Accordingly, we conclude that the record reflects that he

entered a knowing and voluntary plea.

         Appellant also argues that he believed he had a right to

pursue his suppression claim because the district court informed

him there would be no trial by jury if he pled guilty, but failed

to inform him that there would not be a "further trial of any

kind."     See Fed. R. Crim. P. 11(c)(4).   Although district courts

are encouraged to track the language of Rule 11, the test on appeal

is whether, looking at the total circumstances surrounding the

plea, the defendant was informed of his or her rights.        United

States v. Frazier, 705 F.2d 903, 906 (7th Cir. 1983).   As discussed

above, we concluded that the record reflects that Abreo pled

knowingly and voluntarily.      We do not think that the district

court's use of language different from Rule 11(c)(4) changes that

holding.

III.   Sentence


                                  6
     Finally, Abreo argues that the district court erroneously

increased his base offense level by holding him accountable for the

entire amount of money found during the search rather than basing

his sentence only on the amount recovered from his bedroom.     As

part of his plea agreement, Abreo waived his right to appeal his

sentence on all grounds except if the sentence imposed was above

the applicable guideline range.   At sentencing, the district court

adopted the findings in the presentence report, which indicated

that Abreo's offense level was 28 and his criminal history category

was IV, resulting in a guideline range of 110 to 137 months.

Because the district court sentenced Abreo to 114 months in prison,

the sentence imposed was within the applicable guideline range.

Accordingly, Abreo has waived the right to appeal his sentence.5

                            CONCLUSION

     For the foregoing reasons, we AFFIRM Abreo's conviction and

sentence.




5
   Abreo does not challenge the voluntariness of this waiver nor
does he make any argument why this waiver does not apply to his
challenge of his sentence.

                                  7