United States v. Trinidad Flores , 257 F. App'x 164 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11365 NOVEMBER 30, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00261-CR-T-23MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRINIDAD FLORES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 30, 2007)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Trinidad Flores appeals his conviction for conspiracy to distribute, and to
possess with intent to distribute, five kilograms or more of cocaine, a violation of
21 U.S.C. §§ 846 and 841(b)(1)(A). After signing a written plea agreement, Flores
pled guilty before a magistrate judge, who conducted the plea colloquy, with
Flores’s written consent, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
6.01(c)(12) of the Local Rules of the United States District Court for the Middle
District of Florida. The district court subsequently accepted Flores’s plea
according to the magistrate judge’s report and recommendation (“R&R”), to which
Flores filed no objections within 10 days, as he was required to do under Rule 59
of the Federal Rules of Criminal Procedure and Local Rule 6.02(a). Flores now
challenges the validity of the plea colloquy, arguing that he was confused during
the proceedings and that the magistrate judge failed to make necessary factual
findings. We affirm.
As a threshold matter, which we find dispositive, the government says that
Flores waived his challenge to the plea proceedings before the magistrate judge,
because he failed to object to the R&R before the district court adopted it. Rule
59(b) of the Federal Rules of Criminal Procedure provides the following: “A
district judge may refer to a magistrate judge for recommendation . . . any matter
that may dispose of a charge or defense.” Fed. R. Crim. P. 59(b)(1). The rule
further states: “Within 10 days after being served with a copy of the [magistrate
judge’s] recommended disposition . . . a party may serve and file specific written
objections to the proposed findings and recommendations. . . . Failure to object in
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accordance with this rule waives a party’s right to review.” Fed. R. Crim. P.
59(b)(2) (emphasis added). The foregoing waiver provision was adopted in 2005,
and the Advisory Committee explained that the provision “is intended to establish
the requirements for objecting in a district court in order to preserve appellate
review of magistrate judges’ decisions.” Fed. R. Crim. P. 59 Advisory
Committee’s Note (2005) (emphasis added).
We recently addressed the difference between waiver of a constitutional
claim and forfeiture of such a claim in United States v. Lewis, 492 F.3d 1219 (11th
Cir. 2007) (en banc). “[W]aiver is the intentional relinquishment of a known right,
whereas the simple failure to assert a right, without any affirmative steps to
voluntarily waive the claim, is a forfeiture to be reviewed under the plain error
standard embodied in Rule 52(b).” Id. at 1222. We will affirm the district court’s
decision when the defendant waived his right to appeal an error. United States v.
Rodriguez-Velasquez, 132 F.3d 698, 698 (11th Cir. 1998).
Here, pursuant to the plain language of Rule 59(b)(2) and the Advisory
Committee’s commentary, Flores waived his challenge to the plea colloquy by
failing to object to the magistrate judge’s R&R within ten days of its entry. By
virtue of Rule 59 and the R&R, which advised Flores that he had to file objections
to the R&R within 10 days, Flores was on notice that he was required to object,
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within ten days, to the R&R. By taking the affirmative step of not objecting,
Flores “intentional[ly] relinquish[ed]” his appellate rights. Lewis, 492 F.3d at
1222. Flores’s appellate challenge to both the voluntariness and factual basis of
his plea, arguments never raised in the district court, is akin to an appeal directly
from the magistrate judge’s R&R accepting Flores’s guilty plea and stating that the
plea was “knowledgeable, voluntary, and supported by a factual basis.” Cf. United
States v. Brown, 441 F.3d 1330, (11th Cir. 2006) (holding that we lack jurisdiction
to review magistrate judges’ orders never appealed to the district court) (citing
United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003); United States v.
Renfro, 620 F.2d 497, 500 (5th Cir. 1980) (noting that “[t]he law is settled that
appellate courts are without jurisdiction to hear appeals directly from federal
magistrates”)).1 On this record, Flores waived his challenge to the plea colloquy
1
Our conclusion that Flores waived his claim is consistent with the Court’s recent inter-
pretation of Rule 72(a) of the Federal Rules of Civil Procedure, from which Rule 59 is derived.
See Fed. R. Crim. P. 59 Advisory Committee Notes (noting that Rule was “derived in part from
Federal Rule of Civil Procedure 72.” Like Rule 59(b)(2), Rule 72(a) gives parties “10 days after
being served with a magistrate judge’s order” to file objections, and provides that “a party may not
thereafter assign as error a defect in the magistrate judge’s order to which objection was not timely
made.” Fed. R. Civ. P. 72(a). We have found appellate review waived under this Rule 72 provision.
See, e.g., Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007) (“[W]here a
party fails to timely challenge a magistrate judge’s nondispositive order before the district court
[pursuant to Fed. R. Civ. P. 72(a)], the party waived his right to appeal those orders in this Court.”).
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proceedings before the magistrate judge. Accordingly, we will not review his
claim and affirm his conviction and sentence.2
AFFIRMED.
2
Even if the claim was not waived and we reviewed it for plain error, as Flores urges us
to do, we would affirm because “the record provides a basis for the court’s finding that the
defendant understood what he was admitting and that what he was admitting constituted the crime
charged.” United States v. Lopez, 907 F.2d 1096, 1100 (11th Cir. 1990). Although Flores made
inconsistent statements during his plea colloquy, the record as a whole demonstrates that his plea
was knowing and voluntary, because he understood the nature of the charges and how his conduct
related to the charges. The record also established that the magistrate judge made all required
factual findings. In addition to not showing error that was plain, Flores also cannot demonstrate a
reasonable probability that he would have changed his plea, but for the district court’s alleged error,
and thus, he cannot satisfy his burden under the plain error standard of review. See United States
v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
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