United States v. Felicia Triana , 372 F. App'x 20 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 2, 2010
No. 09-13428
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 08-20767-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELICIA TRIANA,
a.k.a. Comadre,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 2, 2010)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Felicia Triana pled guilty under a plea agreement to conspiracy to
possess with intent to distribute 50 grams or more of crack cocaine, in violation of
21 U.S.C. § 846. The plea agreement contained an appeal waiver. Triana was
sentenced to the mandatory minimum of 120 months’ imprisonment. On appeal,
she argues that the district court plainly erred by failing to make a factual finding
regarding the amount of cocaine attributable to her. She also argues that the
district court erred by declining to compel the government to debrief her.
I.
Triana’s first argument is that the district court erred by failing to make a
factual finding regarding the amount of cocaine attributable to her. This court
reviews the district court’s drug-quantity determination for clear error. United
States v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998) (citing United States v.
Jackson, 115 F.3d 843, 845 (11th Cir. 1997)). The record in this case shows that
the plea agreement entered into between Triana and the government provided that
Triana’s offense involved at least 50, but less than 150, grams of crack cocaine.
After Triana entered her guilty plea pursuant to this agreement, the probation
office prepared a Pre-Sentence Investigation report (PSI) which attributed to
Triana 79 grams of crack cocaine. Despite the terms of her plea agreement and her
guilty plea, Triana filed a written objection indicating that although she possessed
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79 grams of crack cocaine, she did not intend to distribute that amount and that
instead, as a crack addict, she personally used half of the 79 grams she possessed,
and intended to distribute less than 50 grams.
At sentencing, the district court failed to resolve Triana’s objection and
made no determination as to the amount of drugs that could be attributed to her.
This is because the district court found that the applicability of a mandatory
minimum penalty obviated the need for a finding as to drug quantity. Triana had
already entered a knowing and voluntary plea of guilty to possession with intent to
distribute over 50 grams of crack cocaine, an offense which carried a mandatory
minimum sentence of 120 months’ imprisonment. Therefore, the district court
found that it was unnecessary to calculate the exact quantity of drugs attributable
to Triana and sentenced her to the mandatory minimum sentence of 120 months’
imprisonment.
We need not review this finding by the district court because we conclude
that Triana voluntarily and freely waived her right to appeal her sentence. This
court has held that appeal waivers are valid if knowingly and voluntarily entered
into. United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (citing
United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993)). To ensure that an
appeal waiver is knowingly and voluntarily entered into, we require that the
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district court specifically question the defendant concerning the sentence appeal
waiver during the Rule 11 colloquy. Id. Where an appeal waiver was knowingly
and voluntarily entered into, this court will dismiss any appeal that violates that
waiver. Id. We have held that an appeal waiver includes a waiver of the right to
appeal even blatant error. United States v. Howle, 166 F.3d 1166, 1169 (11th Cir.
1999). Further, we have held that a sentence appeal waiver is enforceable as to the
issue of drug amounts attributed to a defendant. United States v. Pease, 240 F.3d
938, 942 (11th Cir. 2001).
The record in this case shows that the district court followed the required
procedure and specifically questioned Triana concerning the appeal waiver during
the Rule 11 colloquy. The district court clearly explained the waiver to Triana and
the exceptions to that waiver. Triana stated that she understood and that she was
knowingly and voluntarily accepting the terms of the plea agreement, including
the waiver provision. Accordingly, we conclude that the appeal waiver is valid
and, unless an exception to that waiver applies, this court must dismiss Triana’s
appeal.
Triana’s plea agreement allowed her to appeal in only three situations–(1) if
the sentenced exceeded the statutory maximum sentence; (2) if the sentence
imposed was the result of an upward departure from the guideline range; or (3) if
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the government appealed the sentence. We conclude that none of the exceptions
to the appeal waiver apply in this case. The 120 month sentence imposed did not
exceed the statutory maximum of life in prison, did not result from an upward
departure from the guideline range of 120-135 months’ imprisonment, and the
government did not appeal Triana’s sentence. Accordingly, we conclude that
Triana waived her right to appeal her sentence–even based on drug amount
attribution–and this aspect of her appeal will be dismissed.
II.
Triana’s second argument on appeal is that the district court erred when it
failed to compel the government to debrief her. Triana argues that the government
was required to debrief her by the terms of the plea agreement and that, by not
doing so, the government breached the agreement. The sentence appeal waiver
does not prevent Triana from raising this issue on appeal because this court has
held that an appeal waiver does not prevent a defendant from appealing an alleged
breach of the plea agreement. United States v. Copeland, 381 F3d. 1101, 1105
(11th Cir. 2004). This court reviews de novo whether the government breached
the plea agreement. Id. at 1104.
According to the government, it decided not to provide Triana with the
opportunity to provide assistance because while Triana was on bond awaiting
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sentencing in this case, she was arrested on state charges for possession of cocaine
and tampering with physical evidence. In her objections to the PSI, Triana
asserted that by refusing to debrief her in regards to her cooperation and by
refusing to allow her to cooperate with the government, the government violated
the plea agreement and that she was entitled to have the district court order
specific performance by the government. The district court denied this motion,
finding that, under the terms of the plea agreement, it was solely in the discretion
of the government whether to seek her cooperation and, therefore, specific
performance was unavailable.
Although the government is bound by promises it makes to a defendant in
order to induce a guilty plea, Santobello v. New York, 404 U.S. 257, 262 (1971),
the government cannot be compelled to do something that it did not agree to do in
the first place. The plea agreement entered into in this case is unambiguous in that
it did not explicitly, or even implicitly, obligate the government to give Triana the
opportunity to provide substantial assistance. Instead, the plea agreement
obligated Triana to cooperate fully with the government by providing truthful and
complete information and testimony when called upon by the government, by
appearing at hearings and trials as may be required by the government, and if
requested by the government, working in an undercover role. The plea agreement
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went on to provide that the government “reserve[d] the right” to evaluate the
nature and extent of Triana’s cooperation and to make her cooperation, or lack
thereof, known to the court at the time of sentencing. Because the plea agreement
in no way required the government to debrief Triana or to provide her with the
opportunity to provide assistance, it cannot be said that the government breached
the agreement by not doing so.1 Accordingly, we conclude that the district court’s
refusal to compel the government to do so was not erroneous.2
III.
1
This court has held that the government has “a power, not a duty, to file a motion when a
defendant has substantially assisted.” United States v. Forney, 9 F.3d 1492, 1500 (11th Cir.
1998) (quoting Wade v. United States, 504 U.S. 181, 185 (1992)). It would make little sense to
require the government to give a defendant the opportunity to cooperate when it has the
discretion to not file a substantial assistance motion even after such cooperation is completed.
2
There are two cases from other circuits that, although not cited by Appellant, may seem
to support a different outcome in this case. See United States v. Ringling, 988 F.2d 504, 505 (4th
Cir. 1993) (holding that government was required to debrief defendant prior to sentencing where
plea agreement promised that government would make cooperation known to court at the time of
sentencing); United States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995) (holding that language similar
to plea agreement in Ringling obligated government to interview defendant, even if government
believed that any assistance that defendant might offer would be insubstantial). However, those
cases are distinguishable. In both Ringling and Laday, the government was obligated under the
express terms of the plea agreement to inform the court of the defendant’s cooperation at
sentencing. The courts in those cases found an implicit obligation to interview the defendant
based on this express obligation. In the case at bar, however, the government was expressly not
required to inform the court of Appellant’s assistance if it felt that it was not warranted.
Accordingly, it would make no sense to read an implicit obligation to interview Appellant in this
case.
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In sum, the appeal is dismissed to the extent that Triana is challenging her
sentence based on the drug quantity attributable to her. Further, we affirm the
district court’s refusal to compel the government to debrief Triana.
AFFIRMED in part and DISMISSED in part.
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