UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-2423
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DARIO A. ABREO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(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