United States v. Arnold Prado

204 F.3d 843, 2000 U.S. App. LEXIS 3128, 2000 WL 233238
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 2, 2000
Docket98-3639
StatusPublished
Cited by36 cases

This text of 204 F.3d 843 (United States v. Arnold Prado) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arnold Prado, 204 F.3d 843, 2000 U.S. App. LEXIS 3128, 2000 WL 233238 (8th Cir. 2000).

Opinions

BEAM, Circuit Judge.

Arnold Prado appeals from the sentence imposed by the district court at his resen-tencing, following his successful 28 U.S.C. § 2255 motion to vacate his sentence. We affirm.

A grand jury indicted Prado in five counts of a seven-count indictment with cocaine conspiracy and trafficking charges. He later pleaded guilty to a two-count [845]*845information charging him with aiding and abetting travel involving the distribution of a controlled substance, in violation of 18 U.S.C. §§ 1952 and 2. Prado was sentenced to 60 months imprisonment on each count, the terms to run consecutively, and three years supervised release. The district court1 failed to apprise Prado of his right to appeal, and he did not appeal his sentence. Five years later, he filed a section 2255 motion to vacate his sentence, claiming that he had received ineffective assistance of counsel at sentencing because his attorney did not tell him he had a right to appeal his sentence. The district court2 agreed, vacated the judgment, ordered re-sentencing, and reimposed Prado’s original sentence. This appeal followed.

On appeal, Prado first argues the district court violated Federal Rule of Criminal Procedure 82(c)(3)(A) at his original sentencing by failing to ask whether he had reviewed the presentence report (PSR) and had discussed it with counsel. We conclude any violation of Rule 32 was waived and was harmless: at sentencing Prado did not seek additional time to review the PSR, and the specificity of his objections to it belies his current claim that he did not see the PSR before sentencing. We also note that Prado stipulated to the 120-month sentence he received, and he has not described what additional matters he would have raised at sentencing had he seen the PSR. See Fed. R.Crim.P. 52(a) (error that does not affect substantial rights is disregarded); United States v. Barrows, 996 F.2d 12, 14 (1st Cir.) (failure to invoke Rule 32(c)(3)(A) or request continuance waives claim that defendant was not given time to review PSR, absent miscarriage of justice), cert. denied, 510 U.S. 958, 114 S.Ct. 418, 126 L.Ed.2d 364 (1993).

Prado also argues that he was entitled to de novo resentencing — including preparation of a PSR and the opportunity to be heard on sentencing issues— after his initial sentence was vacated. This argument also fails. When a defendant has been unconstitutionally deprived of appellate review due to ineffective assistance of counsel, the prescribed procedure is for the district court to vacate the sentence and then reimpose it, allowing the defendant ten days to appeal from the imposition of the new sentence. See United States v. Beers, 76 F.3d 204, 205 (8th Cir. 1996) (per curiam). The district court also did not abuse its discretion in denying Prado’s motion to withdraw his guilty plea — which he filed before resentencing-— given that the initial sentence had been vacated only for purposes of reinstating Prado’s right to a direct criminal appeal. In any event, none of the reasons Prado offered in support of his motion to withdraw constituted a “fair and just reason” to do so. See Fed.R.Crim.P. 32(e); United States v. Yell, 18 F.3d 581, 582 (8th Cir. 1994) (standard of review).

Prado next argues that the district court erred by allowing the prosecutor to conduct much of the Federal Rule of Criminal Procedure 11 colloquy at Prado’s guilty plea hearing. We reject this argument because the district court judge independently asked Prado about the factual basis for his plea, to describe the plea agreement in his own words, and whether he understood the proceedings and the maximum term of imprisonment. Cf. United States v. Lambros, 544 F.2d 962, 965-66 (8th Cir.1976) (court substantially complied with Rule 11 when defendant conceded that prosecutor sought appropriate information; defendant could point to no way in which proceedings misled or prejudiced him; and court, by personal direct inquiry, made sure defendant’s responses were truthful, defendant clearly understood his rights and consequences of [846]*846plea, and defendant was guilty of offenses charged), cert. denied, 430 U.S. 930, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). Prado also argues that he did not knowingly and voluntarily waive his right to prosecution by indictment. The record shows, however, that a signed telefaxed copy of the waiver of indictment was presented at the change-of-plea hearing, and that Prado also signed an original of the waiver in open court at sentencing, acknowledging that counsel had advised him of his constitutional right to proceed by indictment. See Fed.R.Crim.P. 7(b) (offense punishable by prison for more than one year may be prosecuted by information if defendant, after being advised of his rights and nature of charge, waives prosecution by indictment in open court); Fed.R.Crim.P. 52(a).

Prado also contends that the district court violated Rule 11 by failing to disclose the full plea agreement at his change-of-plea hearing, failing to inform him the government could invalidate the plea agreement if he received less than a ten-year sentence, and failing to inform him that the court was required to consider the Guidelines. Prado has not shown, however, that he would not have pleaded guilty but for those omissions, and he specifically acknowledged the government’s right to withdraw from the plea agreement if he received less than 120 months imprisonment. See Fed.R.Crim.P. 11(h); United States v. McCarthy, 97 F.3d 1562, 1575 (8th Cir.1996) (error is harmless if defendant’s knowledge and understanding of correct information would not affect willingness to plead guilty), cert. denied, 519 U.S. 1139, 117 S.Ct. 1011, 136 L.Ed.2d 888 and 520 U.S. 1133, 117 S.Ct. 1284, 137 L.Ed.2d 359 (1997).

Finally, Prado argues the district court erred in accepting his plea when the court did not advise him of the effect of his supervised release. Prado relies heavily on United States v. Osment, 13 F.3d 1240

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Bluebook (online)
204 F.3d 843, 2000 U.S. App. LEXIS 3128, 2000 WL 233238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arnold-prado-ca8-2000.