United States v. Magana

147 F. App'x 200

• Court: Court of Appeals for the Second Circuit
• Decided: June 14, 2005
• Docket: No. 04-2843
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED as to the convictions and the case is REMANDED for sentencing proceedings consistent with United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

Jorge Manuel Torres-Teyer, Victor Manuel Adan Carrasco, and Oscar Moreno Aguirre, each of whom pleaded guilty to drug conspiracy charges, appeal from sentences imposed in May 2004 by the United States District Court for the Southern District of New York (Lynch, /.). Defendants argue that they were sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Carrasco also argues that the district court erred by declining to reduce his offense level for his purportedly minor role in the conspiracy. In addition, Moreno Aguirre challenges the sufficiency of his guilty plea.

Moreno Aguirre argues that the district court violated Federal Rule of Criminal Procedure 11 (and due process) by failing to establish that: (1) there was a factual basis for Moreno Aguirre’s guilty plea; (2) Moreno Aguirre understood the charges against him, and (3) Moreno Aguirre’s plea was voluntary. Rule 11 requires that, before accepting a guilty plea, the district court advise the defendant of and determine that the defendant understands his rights and the nature of the charges, ensure that the plea is voluntary, and determine that there is a factual basis for the plea. Fed.R.Crim.P. 11(b). However, “[i]n determining whether the defendant possesses the requisite understanding of the government’s charges, under Rule 11[ (b)(1)(G) ] a district court is not required to follow any particular formula[.]” Frederick v. Warden, 308 F.3d 192, 197 (2d Cir.2002) (internal quotation marks and citation omitted). Similarly, with respect to the factual basis for the plea, “Rule 11[ (b)(3)] requires the court to 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[.]” United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.1997).

Because Moreno Aguirre did not object during the plea proceeding, we review for plain error. United States v. Vann, 535 U.S. 55, 63-74, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Moreno Aguirre’s plea challenge fails at the first level of this analysis because the record in this case fails to demonstrate any error. Instead, it reveals the district court’s detailed explanation of the conspiracy charge to which Moreno Aguirre would be pleading, Moreno Aguirre’s understanding of the charge, and his admission to facts sufficient to demonstrate guilt. We conclude that the district court properly conducted the Rule 11 plea colloquy and properly accepted Moreno Aguirre’s guilty plea.

Carrasco argues that the district court erred by denying his application for a minor role adjustment pursuant to U.S.S.G. § 3B1.2. However, Carrasco’s brief acknowledges that he was the “supervisor of the cartel’s security crew.” Given this concession, as well as evidence in the record indicating Carrasco’s “important” role

* in the conspiracy, the district court properly declined to apply the minor role adjustment. [JA 77]

Finally, all three defendants argue that they were sentenced based upon facts found by the judge rather than by the jury, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), “a ruling that Booker has now explicitly applied to the Guidelines,” United States v. Williams, 399 F.3d 450, 453 (2d Cir.2005). In light of the Supreme Court’s opinion in Booker, this case must be remanded to the district court for proceedings consistent with both Booker and Crosby, this Court’s decision elucidating Booker. The government consents to a Crosby remand.

The judgment of the district court is hereby AFFIRMED as to the convictions and the case is REMANDED for sentencing proceedings consistent with United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

The district court denied the government’s application for a managerial role enhancement for Carrasco.