IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CASE NO UNITED STATES OF AMERICA, Plaintiff Appellee,

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CASE NO UNITED STATES OF AMERICA, Plaintiff Appellee, v. EVARISTO BELTRAN RODRIGUEZ Defendant Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BRIEF OF APPELLANT PURSUANT TO ANDERS v. CALIFORNIA, 386 U.S. 738 (1967) F. CLINTON BRODEN Broden & Mickelsen 2707 Hibernia Dallas, Texas (facsimile) Attorney for Appellant Evaristo Beltran Rodriguez

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualifications or recusal. Appellant, EVARISTO BELTRAN RODRIGUEZ, pled guilty and was sentenced before the Honorable DAVID HITNER, United States District Judge for the Southern District of Texas. Appellant was represented below by DICK WHELLAN and is represented on appeal by F. CLINTON BRODEN of the law firm BRODEN & MICKELSEN. The Appellee, the United States of America, was represented in the proceedings below by TED IMPERATO, Assistant United States Attorney for the Southern District of Texas and is represented on appeal by JAMES TURNER, Assistant United States Attorney for the Southern District of Texas. F. Clinton Broden

3 STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested. Counsel has moved to withdraw and has filed this brief pursuant to Anders v. California, 386 U.S. 738 (1967). After careful study of the record and the applicable law, it is the good faith belief and professional opinion of counsel that this case presents no meritorious points for appeal on which the Appellant could possibly prevail.

4 TABLE OF CONTENTS Page No. CERTIFICATE OF INTERESTED PERSONS i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS TABLE OF AUTHORITIES iii iv STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 3 A. Proceedings Below 3 B. Statement of the Facts 3 SUMMARY OF ARGUMENT 5 ARGUMENT 6 MR. RODRIGUEZ'S PLEA OF GUILTY WAS VOLUNTARILY MADE PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 6 CONCLUSION 9 CERTIFICATE OF SERVICE 11

5 TABLE OF AUTHORITIES Page No. Cases Anders v. California, 386 U.S. 738 (1967) ii, 9 Baker v. United States, 781 F.2d 85 (6th Cir. 1985), cert. denied, 479 U.S (1986) 7 Boykin v. Alabama, 395 U.S. 238 (1969) 8 McCarthy v. United States, 394 U.S. 459 (1969) 8 United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904 (1980) 7-8 United States v. Howard, 991 F.2d 195 (5th Cir U.S.C. 924(c) 3 18 U.S.C U.S.C. 841(a)(1), 3 28 U.S.C Statutes Fed. R. Crim. P. 11 passim.

6 STATEMENT OF JURISDICTION The jurisdiction of this Court may be invoked pursuant to 28 U.S.C as an appeal from a final judgment entered by the United States District Court for the Southern District of Texas. Furthermore, jurisdiction to review the sentence imposed in this case may be invoked pursuant to 18 U.S.C. 3742(a) as an appeal of a sentence imposed under the Sentencing Reform Act of 1984.

7 STATEMENT OF THE ISSUE Whether Mr. Rodriguez s plea of guilty was voluntarily made pursuant to Fed. R. Crim. P. 11.

8 STATEMENT OF THE CASE A. Proceedings Below On March 1, 2004, the Appellant, Evaristo Beltran Rodriguez, and Ismael Moreno Rodriguez were charged in a three count indictment. Evaristo Rodriguez was charged in Count 1 with possessing with the intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. 841(a)(1), and in Count 2 with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c), Evaristo Rodriguez was not charged in Count 3. See Excerpts at 3. 1 Mr. Rodriguez subsequently entered a guilty plea to both counts. On August 6, 2004, the Honorable David Hitner sentenced Mr. Rodriguez to sixty months of imprisonment on Counts 1 and 2 to run consecutively, a five year term of supervised release and a $200 mandatory special assessment. See Excerpts at 4. Mr. Rodriguez filed a timely notice of appeal on August 12, 2004 and this appeal follows. Id. at 2. B. Statement of the Facts In connection with his guilty plea, Mr. Rodriguez admitted the following facts to be correct: 1 1 References to the Record Excerpts ("Excerpts") refer to the tab number. References to the Record ("Rec.") refer to the volume number:tab number. The transcript of Mr. Rodriguez s guilty plea can be found at Volume III of the record and in the Excerpts at Tab 5.

9 If this matter had gone to trial, the government would prove beyond a reasonable doubt that on January 29, 2004, Oscar Garcia, an officer working with the DEA, acting in an undercover capacity, contacted Evaristo and was informed that Evaristo would sell three kilograms to Officer Garcia the next day. January 30, 2004, DEA set up surveillance of Evaristo s residence and followed Evaristo and Ismael Rodriguez, who drove to the Food Town Grocery Store, located in Houston, Southern District of Texas. Officer Garcia met with Evaristo at the location and entered his vehicle. While inside Evaristo s vehicle, Garcia observed a firearm between Evaristo s legs and cocaine in the pocket of Evaristo s jacket. Officer Garcia exited Evaristo s vehicle and instructed the other agents to initiate a traffic stop of Evaristo s vehicle, as well as Ismael s vehicle. As the agents attempted to make a traffic stop... After Evaristo was apprehended, agents located two bricks of cocaine -- one was located in the small of his back -- and a loaded Smith & Wesson, model MOD 915, 9-millimeter caliber handgun, on the ground near where Evaristo was apprehended. The Smith & Wesson 9-millimeter caliber handgun was examined by ATF Special Agent Steve Seale and, based on his examination, Special Agent Seale determined that the firearm functioned as designed and met the statutory definition of a firearm. Forensic chemist Tamara Dallabetta-Keller tested the substance at the DEA laboratory and determined it to be cocaine with a net weight of 1003 grams. Rec. at III:9-10

10 SUMMARY OF ARGUMENT Mr. Rodriguez entered a knowing and voluntary plea of guilty. The District Court properly admonished Mr. Rodriguez at the Rule 11 hearing and complied with the dictates of Rule 11 and the applicable case law.

11 ARGUMENT MR. RODRIGUEZ'S PLEA OF GUILTY WAS VOLUNTARILY MADE PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE. 2 Throughout the Rule 11 proceeding, the District Court in this case personally and in open court addressed Mr. Rodriguez (Rec. at III:2-12). See Fed. R. Crim. P. 11(b). The District Court ensured that Mr. Rodriguez understood (1) the nature of the charge to which he was pleading guilty (Rec. at III:4-5); (2) the maximum penalty provided by law including the supervised release term, restitution and fines (Rec. at III:5); and (3) the application of the sentencing guidelines (Rec. at III:7-8). See Fed. R. Crim. P. 11(b)(1). During the proceeding, Mr. Rodriguez was represented by an attorney and he had the charges against him and the rearraignment proceedings translated. (Rec. at III:2-12) The District Court informed Mr. Rodriguez that he had (1) the right to plead not guilty (Rec. at III:6); (2) the right to a jury trial on the charges in the indictment (Rec. at III:6); (3) the right to assistance of counsel at trial (Rec. at III:6); and (4) the right to confront and cross examine adverse witnesses, the right against compelled self incrimination and the right to present evidence in his own behalf (Rec. at III:6). See Fed. R. Crim. P. 11(b)(1). Mr. Rodriguez was informed that he would be giving up these rights by pleading guilty (Rec. at III:6-7). Id.

12 The District Court did not accept Mr. Rodriguez's guilty plea without first addressing Mr. Rodriguez and determining that the plea was voluntary and not the result of force, threats, coercion or other promises aside from the plea agreement (Rec. at III:9). See Fed. R. Crim. P. 11(b)(2). The District Court further determined that there was a factual basis for the plea before accepting Mr. Rodriguez's plea of guilty (Rec. at III:10-11). See Fed. R. Crim. P. 11(b)(1)(3). In United States v. Dayton, 604 F.2d 931, 943 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904 (1980), this Court addressed the requirements by which a plea of guilty is acceptable under Fed. R. Crim. P. 11: What is necessary is that the trial court, given the nature of the charges and the character and capacities of the defendant, personally participate in the colloquy mandated by Rule 11 and satisfy himself fully that, within those limits, the defendant understands what he is admitting and what the consequences of that admission may be, as well as that what he is admitting constitutes the crime charged, and that his admission is voluntary made. Likewise, the United States Court of Appeals for the Sixth Circuit has explained that for a guilty plea to be valid it must be both knowing and voluntary. Baker v. United States, 781 F.2d 85, 88 (6th Cir. 1985), cert. denied, 479 U.S (1986). The Court in Baker recognized that, under Rule 11, the district court must examine the defendant "as to his competence to plead, his understanding of the 2 The voluntariness of a guilty plea is a question of law reviewed de novo. United States v. Howard, 991 F.2d 195 (5th Cir. 1993).

13 consequences of his actions in pleading guilty, and his voluntariness, before accepting the plea." Id. At the rearraignment in this case, the District Court followed the requirements of Rule 11 as outlined above. Acceptance of the plea of guilty is deemed a positive finding that the accused has done so "voluntarily, understandingly and with knowledge of the consequences of this plea..." Dayton, 604 F. 2d at 939. Mr. Rodriguez's arraignment complied with Fed. R. Crim. P. 11 and with the United States Constitution. See McCarthy v. United States, 394 U.S. 459 (1969); Boykin v. Alabama, 395 U.S. 238 (1969). Mr. Rodriguez's plea was both knowing and voluntary. The District Court, given the nature of the charges and the character and capacities of the defendant, satisfied the prerequisites for a full colloquy and the Court was satisfied that Mr. Rodriguez understood the charges and that his plea was voluntary Ultimately, Mr. Rodriguez was sentenced to the mandatory minimum sentence on both counts to which he pleaded guilty.

14 CONCLUSION In accordance with Anders v. California, 386 U.S. 738 (1967), counsel has examined the record for issues which might arguably support an appeal. In the opinion of counsel, as discussed above, Mr. Rodriguez entered a knowing and voluntary plea of guilty. Accordingly, counsel moves to withdraw from this case in accordance with Anders v. California, and asks the court to rule on this appeal in accordance therewith. Respectfully submitted, F. Clinton Broden Broden & Mickelsen 2707 Hibernia Dallas, Texas (facsimile) Attorney for Appellant Evaristo Beltran Rodriguez

15 CERTIFICATE OF SERVICE I, F. Clinton Broden, certify that, on May 23, 2005, I caused two (2) paper copies and one electronic copy of the foregoing Brief of Appellant to be deposited in the United States Mail, first class, postage paid, addressed: Joseph Turner Assistant United States Attorney 910 Travis, Suite 1500 Houston, Texas I further certify that, on May 23, 2005, a copy of the brief was deposited in the United States Mail, first class, postage paid, Evaristo Rodriguez # FCI Beaumont P.O. Box Beaumont, Texas F. Clinton Broden