United States v. Colon

23 F. App'x 40
Procedural entryThis page is a short order in United States v. Colon. Read the opinion of the Court — 38 F. App'x 636
Court of Appeals for the Second Circuit·Decided October 15, 2001·No. Nos. 00-1230, 00-1660, 00-1617, 00-1661, 00-1623·Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of said District Court be and hereby are AFFIRMED.

Francisco Escobar and David Borras appeal from judgments of conviction after pleading guilty to two counts each of violating 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846 in the United States District Court for the Southern District of New York, Hellerstein, J. They were sentenced to concurrent terms of 151 months and 168 months, respectively, on each count, to be followed by five years of supervised release and the mandatory special assessments of $200 for each defendant.

Borras challenges the plea colloquy, claiming Magistrate Judge Grubin failed to determine that Borras understood the nature of the charges and failed to establish a factual basis for the plea. Borras also claims that the court erred at sentencing by applying a two-point upward departure for his role in the offense. (In his brief he mistakenly calls the departure under U.S.S.G. § 5K2.0 an “adjustment” pursuant to U.S.S.G. § 3B1.1.)

On appeal, Escobar only claims that the court erred as a matter of law in departing upward. The government cross-appeals the court’s refusal to impose upward adjustments under U.S.S.G. § 3B1.1 for Escobar and Borras, and its decision to award Escobar a two-level “safety-valve” reduction under U.S.S.G. § 2D1.1(b)(7).

We affirm the judgments below.

The following facts are not in dispute. Escobar contacted Borras, a resident of New York City, and asked him if he would be interested in buying drugs. Escobar had already made contact with “Pablo,” a confidential police informant, who led Escobar to believe that Pablo could provide large quantities of cocaine for sale. Borras declined Escobar’s invitation, but introduced Escobar to Cesar Colon, whom Borras thought would be interested in purchasing the cocaine. Escobar and Borras subsequently met with Pablo on several occasions and negotiated the quantity of drugs to be purchased and the amount of the down payment to be required from the buyers, eventually agreeing on a quantity of fifty kilograms of cocaine in exchange for a down payment of $200,000 in cash.

On June 23, 1999, in midtown Manhattan, police arrested Borras, Escobar and three others in the midst of the scheduled drug exchange. The two-count indictment, filed on July 6, 1999, charged Borras, Escobar and two co-defendants with conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine, and attempting to distribute and possess with intent to distribute approxi[43]*43mately 50 kilograms of cocaine. See 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. Co-defendants Cesar Colon and Manuel A. Alvarez each pleaded guilty, were sentenced separately, and are not parties to this appeal.

On January 20, 2000, Borras entered a guilty plea before Magistrate Judge Grubin in the Southern District of New York. On January 21, 2000, Escobar entered a guilty plea before Judge Hellerstein. On August 30, 2000, after conducting a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), Judge Heller-stein sentenced Borras and Escobar to terms of incarceration of 168 and 151 months, respectively.

Borras contends that Magistrate Judge Grubin did not properly determine that Borras understood the nature of the charges to which he pleaded guilty, as required by Federal Rule of Criminal Procedure 11(c)(1). Borras further contends that Magistrate Judge Grubin did not find a factual basis for the guilty plea, as required by Rule 11(f). Borras’ claims are without merit.

In making an inquiry to determine whether a defendant understands the charges to which he is pleading guilty, “[a] district court is not required to follow any particular formula.” United States v. Andrades, 169 F.3d 131, 135 (2d Cir.1999). The court may summarize the charges in its own words or by reading the indictment to the defendant. United States v. Maher, 108 F.3d 1513, 1521 (2d Cir.1997). Even if the defendant’s own recitation of his conduct is insufficient to satisfy the elements of the charge, Rule 11(c)(1) is satisfied “ ‘where the charging instrument plainly describes the offense and defendant acknowledges that he read, understood, and discussed with his attorney that legal document.’ ” United States v. Blackwell, 199 F.3d 623, 626 (2d Cir.1999) (quoting Andrades, 169 F.3d at 135).

The Magistrate Judge began the plea proceeding by summarizing in her own words the charges in the indictment, after which she asked Borras if he had seen a copy of the indictment. Borras responded, ‘Yes, I have.” The Magistrate Judge then asked Borras, “Have you had a sufficient opportunity to speak with Mr. Elso about the charges and about any defenses you may have to them?” Borras responded, “Yes.” Following this colloquy, Borras pleaded guilty to the charges in the indictment.

The indictment states that Borras met with Escobar and Pablo, the police informant, one day prior to the arrest. The indictment also states that Borras met again with Escobar and Pablo, as well as two other defendants, on the date of the arrest. The indictment states that during this meeting Borras said that he suspected that police were surveilling them. Finally, the indictment states that Borras gave an undercover police officer the keys to the “money car.”

The inquiry conducted by Magistrate Judge Grubin, together with the charges and acts described in the indictment, which Borras acknowledged that he saw and discussed with his attorney, are enough to satisfy the requirements of Rule 11(c)(1). See Andrades, 169 F.3d at 135. We thus conclude that Magistrate Judge Grubin properly determined that Borras understood the nature of the charges to which he was pleading guilty.

“There also is no specific dialogue that must take place in order to comply with Rule 11(f)’s requirement that the ... court satisfy itself regarding the factual basis for defendant’s guilty plea.” Id. at 136. The court must “assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.” Maher, 108 F.3d at 1524. [44]*44The court may rely on the defendant’s admissions or on information from the government or defense counsel, as well as other information that is appropriate to the specific case. Id. (citing Fed.R.Crim.P. 11 Advisory Comm. Note (1974) (Rule 11(f))).

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United States v. Colon, 23 F. App'x 40 (2d Cir. 2001).

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