United States v. Lazaro Mateo , 413 F. App'x 197 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11165 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 9, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20046-JAL-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO MATEO,
a.k.a. Caravela,
a.k.a. Ricky
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 9, 2011)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Lazaro Mateo appeals his conviction and his lifetime term of supervised
release for conspiracy to possess with intent to distribute heroin, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(i) and 846. After review, we affirm.
I. BACKGROUND
A. Indictment and Plea Agreement
In 2008, law enforcement conducted an extensive undercover investigation
into a heroin trafficking network in the Miami area and used wire taps,
surveillance and controlled buys with a confidential informant. Defendant Mateo
worked for the main heroin supplier, codefendant Willie Berrios. Berrios
provided heroin to codefendants Julio Borges and Howard Burgos, who, in turn,
supplied many other distributors.
A 28-count superseding indictment was brought against Mateo and sixteen
codefendants, including Berrios and Borges. Pursuant to a plea agreement, Mateo
pled guilty to Count 1, the heroin conspiracy count. The plea agreement contained
a sentence appeal waiver that waived Mateo’s right to appeal his sentence “unless
the sentence exceeds the maximum permitted by statute or is the result of an
upward departure and/or a variance from the guideline range that the Court
establishes at sentencing.”
B. Plea Colloquy
At the plea hearing, the district court elicited from Mateo that he: (1) was
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forty years old and had a sixth or seventh grade education; (2) was not under the
influence of any drug, medication or alcoholic beverage, either at the hearing or
while discussing his criminal case with his attorney; (3) was not recently under the
care of a doctor or psychiatrist; and (4) had not recently been hospitalized.
At one point, Mateo did not immediately respond to one of the district court’s
questions. His attorney offered to explain it to Mateo and stated, “he has some
issues that we will be flushing out between now and the sentencing, but we’re
confident that he can - -.” The district court rephrased the question, and Mateo
was able to respond.
The district court read Count 1 to Mateo and asked the government to give a
proffer of the facts. The government stated that Defendant Mateo engaged in
multiple intercepted cell phone calls with codefendant Berrios and delivered
heroin pursuant to Berrios’s instructions. During one phone call, Berrios directed
Defendant Mateo to confirm that 500 grams of heroin were at a warehouse, which
Mateo did. In another phone call, Berrios directed Mateo to take 1 kilogram of
heroin from the warehouse to codefendant Borges. On that occasion, Mateo was
stopped by police, and a search of his car revealed 999.3 grams of heroin. A
subsequent search of the warehouse revealed a further 2.68 kilograms of heroin.
The government advised that the parties agreed that Mateo facilitated the
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distribution of at least 1.5 kilograms of heroin during the conspiracy.
The district court asked Mateo whether he understood the charges against
him, and Mateo replied, “Yes, Ma’am.” The district court asked Mateo if he
admitted the facts as stated by the government, and Mateo replied, “Yes, I do.”
The district court confirmed with Mateo that the government’s factual proffer was
correct and that Mateo did not have any changes or corrections.
The district court also confirmed with Mateo that he understood that: (1) the
mandatory minimum imprisonment term was ten years and the maximum
imprisonment term was life; (2) after Mateo completed his imprisonment term, he
would serve a period of supervised release, with a minimum of a five-year term
and a maximum of a life term; (3) the court could not determine Mateo’s advisory
guidelines range until after the presentence investigation report (“PSI”) was
prepared; (4) the court would consider all the sentencing factors; and (5) the
ultimate sentence imposed might be different from any estimate given to Mateo by
his attorney.
The district court asked Mateo: (1) if his guilty plea was being made freely
and voluntarily, to which Mateo replied, “Yes, Ma’am”; and (2) if anyone forced
or threatened him to plead guilty or if anyone had made representations to him,
other than the plea agreement, to convince him to plead guilty, and Mateo replied,
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“No, Ma’am.” Mateo indicated that he was satisfied with his attorney and that he
had adequate time to confer with his attorney about the conspiracy charge, the
proceedings and all matters related to the charge.
The district court read Mateo the plea agreement and asked Mateo if he had
read the agreement before he signed it. Mateo indicated that the plea agreement
was read to him and that he discussed the agreement with his attorney. Mateo
confirmed that he: (1) understood the terms of the agreement; (2) understood that
he was giving up his right to appeal the sentence; (3) had entered into the waiver
of his appellate rights freely and voluntarily; (4) had fully discussed the appeal
waiver with his attorney; and (5) understood that, if the court accepted his guilty
plea, he would be bound by the plea, even if the sentence was more severe than
expected.
The district court asked Mateo’s counsel about Mateo’s “issues” that he
would explore pending sentencing. Mateo’s counsel indicated that these were
“[d]iminshed capacity-type issues” and that Mateo “ha[d] a history, and [the
defense was] doing a psychological workup on him.” The district court asked
Mateo’s defense counsel if he was asserting a competency issue “at this time,” and
defense counsel replied that he was not. The district court found that Mateo had
entered into the sentence appeal waiver knowingly, freely and voluntarily and that
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Mateo was “fully competent and capable of entering an informed plea, that [he
was] aware of the nature of the charge and the consequences of the plea and that
the plea of guilty [was] a knowing and voluntary plea.” The district court
accepted Mateo’s guilty plea.
C. PSI
The PSI: (1) assigned a base offense level of 34, pursuant to U.S.S.G.
§ 2D1.1(c)(3), based on drug quantity; (2) raised the offense level to 37, pursuant
to U.S.S.G. § 4B1.1(a), because Mateo was a career offender;1 (3) applied a three-
level decrease, pursuant to U.S.S.G. § 3E1.1(a)-(b), for acceptance of
responsibility. With a total offense level of 34 and a criminal history category of
VI pursuant to U.S.S.G. § 4B1.1, the PSI recommended an advisory guidelines
range of 262 to 327 months’ imprisonment and a term of supervised release of “at
least five years.”
The PSI indicated that Mateo reported: (1) having a learning disability his
entire life and receiving counseling in school; and (2) being hospitalized as an
infant for inhaling an unknown chemical, which he believed may have contributed
to his learning disability. The PSI noted that during the presentence interview,
1
The PSI identified two prior felony crimes of violence: (1) 1991 convictions for burglary
of a conveyance, grand theft, aggravated assault and unlawful possession of a firearm; and (2)
1993 convictions for second degree murder, attempted robbery and burglary with assault.
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Mateo “appeared slow and had difficulty recalling any past treatment and dates.”
The PSI summarized the findings of Dr. Heather Holmes, who evaluated
Mateo in 2009 and diagnosed him with depressive disorder and learning disorder.
Dr. Holmes found that Mateo had a learning disability similar to dyslexia and an
I.Q. score of 66, “which [was] typically a diagnostic indicator of mental
retardation.” However, Dr. Holmes “did not believe [Mateo] fell into that
category,” explaining that “the severity of [Mateo’s] learning disability impacted
his performance on the test and likely lowered his overall I.Q. score.”
Mateo filed written objections to the PSI’s drug quantity used to calculate
his base offense level and his designation as a career offender.
D. Motion for Downward Departure or Variance
Mateo also filed a motion for a downward departure and/or variance. Mateo
argued that a downward departure was warranted: (1) under U.S.S.G. § 5K2.13
based on his diminished capacity; and (2) under U.S.S.G. § 4A1.3 because his
criminal history category overstated the seriousness of his criminal history. Mateo
attached a copy of Dr. Holmes’s evaluation of Mateo, which stated that: (1) Mateo
“displayed evidence of scholastic and cognitive difficulties”; (2) Mateo was only
able to read at a first-grade level; and (3) Mateo’s “ability to exercise the power of
reason is significantly impaired.” Dr. Holmes concluded that “[b]ased on this and
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his history of reliance on and/or manipulation by others . . . his diminished
capacity contributed substantially to the commission of the offense.”
E. Sentencing
At the sentencing hearing, Mateo withdrew his objections to the PSI. The
district court adopted the PSI’s factual findings and guidelines calculations and
found that Mateo’s advisory guidelines range was 262 to 327 months’
imprisonment.
In support of his motion for a downward departure and in mitigation, Mateo
cited Dr. Holmes’s evaluation as to his diminished capacity. Mateo’s counsel
stated, “Now, clearly, I thought he was competent to go forward. He is. He also
knew that what he was doing was wrong.” Mateo’s counsel, however, argued that:
(1) Mateo’s diminished capacity significantly contributed to his commission of
the offense; (2) Mateo was essentially a “delivery boy” for codefendant Berrios
and did what Berrios told him to do; and (3) Mateo may have been under the
influence of others when he committed his prior felonies that resulted in his career
offender status. Defense counsel further stated that Mateo “understood from the
very beginning that what he did was wrong . . . [t]hat’s why [Mateo] didn’t want
me to file any motions. He didn’t want me to try the case. He just wanted to come
in and say he was guilty and he understood what he did and he understood that it
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was wrong.”
The district court denied the downward departure request under U.S.S.G.
§ 4A1.3 to the extent it was based on Mateo’s criminal history. The district court,
however, granted a downward departure under U.S.S.G. § 5K2.13 based on
Mateo’s diminished capacity, noting Dr. Holmes’s findings that Mateo’s impaired
ability to reason significantly contributed to his commission of the offense.2
Rather than the advisory guidelines range of 262 to 327 months, the district
court imposed a 180-month sentence, followed by a lifetime term of supervised
release. In determining the appropriate sentence, the district court considered the
18 U.S.C. § 3553(a) factors and noted that Mateo’s offense was a very serious
drug charge and Mateo had a very serious criminal history. The district court
stated:
[G]iven the other Defendants who were sentenced as career offenders in
this large-scale, serious drug-trafficking conspiracy and the diminished
capacity of [Mateo] as well as the other [§ 3553(a)] factors, including
the need to protect the public from further crimes of [Mateo], based
upon this diminished capacity, [Mateo’s] inability to exercise the power
of reason and [Dr. Holmes’s] finding that [Mateo is] subject to
manipulation by others, I do find that there’s - - the factor of protecting
the public from further crimes of [Mateo] is one I should consider, as
well as the serious criminal history background that [Mateo] has, which
2
Section 5K2.13 authorizes a downward departure if “the defendant committed the
offense while suffering from a significantly reduced mental capacity” that “contributed
substantially to the commission of the offense.” U.S.S.G. § 5K2.13.
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involves at least . . . two crimes of violence.
And there seems to be a pattern of these crimes of working with
others . . . he always seems to be involved with others as well as this
case, where he seems to be doing the bidding of others.
The district court explained that the lifetime term of supervised release was
necessary “to prevent [Mateo] from being involved in further crimes, to being
manipulated by persons who may not have his best interests at heart and certainly
do not have society’s best interests at heart.”
After Mateo objected to the supervised release term, the district court noted
that it would consider reducing or terminating supervised release if there was a
positive change based on the treatment Mateo received. The district court again
emphasized Mateo’s career offender status, serious criminal history and the
seriousness of his drug conspiracy offense. The district court explained that
Mateo “was subject to the same kind of manipulation even by the presentation of
the defense in this case as he seemed to be in the prior criminal history cases.”
The district court stressed that “sometimes it’s difficult for a family to provide that
kind of supervision, especially for, you know, a grown man. But in some
instances, the Court has to step up and provide the kind of supervision that may be
necessary for [Mateo].” Mateo filed this appeal.
II. DISCUSSION
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A. Failure to Hold a Competency Hearing Sua Sponte
On appeal, Mateo argues that the district court erred by failing to inquire
sua sponte into his competency during the plea hearing.3
A defendant has a due process right not to be tried or convicted while
incompetent. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 903-04
(1975). A defendant is incompetent if he lacks “sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding” and
“has a rational as well as factual understanding of the proceedings against him.”
Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995).
The district court must sua sponte conduct a hearing to determine a
defendant’s mental incompetence “if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to understand the nature
and consequences of the proceedings against him or to assist properly in his
defense.” 18 U.S.C. § 4241(a). This Court has concluded that the trial court must
sua sponte conduct a competency hearing when the information known to the
district court is “sufficient to raise a bona fide doubt regarding the defendant’s
3
This Court reviews for an abuse of discretion a district court’s failure to order sua sponte
a competency hearing. See United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972).
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competence.” Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990).
We consider three factors in deciding whether the trial court violated the
defendant’s due process rights by failing sua sponte to hold a competency hearing:
(1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor
during the court proceedings; and (3) prior medical opinion regarding the
defendant’s competence to stand trial. Id. Our analysis “focuses on what the trial
court did in light of what it knew at the time of the trial or plea hearing.” Id.“Because legal competency is primarily a function of [a] defendant’s role in
assisting counsel in conducting the defense, the defendant’s attorney is in the best
position to determine whether the defendant’s competency is suspect.” Watts v.
Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996).
Here, none of the factors suggests the district court sua sponte should have
held a competency hearing before accepting Mateo’s guilty plea. There was no
evidence of past irrational behavior by Mateo. Mateo’s demeanor during the
proceedings was unexceptional. Mateo gave appropriate, polite answers to the
district court’s questions and did not give the district court any reason to believe
that at the time of the plea hearing Mateo was unable to assist his counsel or
understand the charges against him. There was no medical opinion as to Mateo’s
competency.
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While the issue of Mateo’s mental disability was discussed at the plea
colloquy, “the mere presence of mental illness or other mental disability at the
time [the defendant] entered his plea does not necessarily mean that he was
incompetent to plead . . . .” Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.
1979). Although Mateo’s counsel indicated that a psychological workup was
being done on Mateo, the remarks of both the district court and Mateo’s counsel
make clear that all parties understood that this issue was to be a mitigating factor
at sentencing, not an allegation of incompetency. All the information before the
district court indicated that Mateo was able to participate meaningfully in the
proceedings against him. Further, Mateo’s counsel expressly declined to raise the
issue of competence at the plea hearing. Under these particular circumstances, the
district court did not abuse its discretion in failing to hold a competency hearing
sua sponte.4
B. Plea Colloquy
Mateo contends the district court erred at the plea colloquy by failing to
explain fully to him the pertinent elements of his offense, in violation of Federal
4
To the extent Mateo argues that the district court should have held a competency hearing
before sentencing, the factors do not weigh in his favor at that stage in the proceedings either. At
sentencing, Mateo behaved rationally and there is no evidence of past irrational behavior. While
the district court had the benefit of Dr. Holmes’s evaluation, Dr. Holmes never indicated that
Mateo was mentally incompetent. Additionally, Mateo’s counsel reiterated his belief that Mateo
was competent.
13
Rule of Criminal Procedure 11.5
“Rule 11 imposes upon a district court the obligation and responsibility to
conduct an inquiry into whether the defendant makes a knowing and voluntary
guilty plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.
2000). “When accepting a guilty plea, a court must address three core concerns
underlying Rule 11: (1) the guilty plea must be free from coercion; (2) the
defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” Id. (quotation marks
omitted).
Mateo’s brief focuses on the second core concern. Whether the district
court “complied with Rule 11’s mandate to satisfy itself that the [defendant]
understood the nature of the charges against [him]” depends on “the relative
difficulty of comprehension of the charges and of the defendant’s sophistication
and intelligence.” United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997)
(quotation marks omitted). “[F]or simple charges . . . a reading of the indictment,
followed by an opportunity given the defendant to ask questions about it, will
5
Because Mateo did not object to the plea proceedings in the district court, we review the
court’s compliance with Rule 11 for plain error. United States v. Brown, 586 F.3d 1342, 1345
(11th Cir. 2009), cert. denied, 130 S. Ct. 2403 (2010). To show the district court committed
plain error under Rule 11, the defendant must show “a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74,
83, 124 S. Ct. 2333, 2340 (2004).
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usually suffice.” United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir. 1990)
(quotation marks omitted).
The conspiracy charge to which Mateo pled guilty was a simple one. See
United States v. Bell, 776 F.2d 965, 966, 969 (11th Cir. 1985) (concluding that the
offense of conspiracy to possess marijuana with intent to distribute, in violation of
§ 846, was a “simple” charge). The district court read the entire heroin conspiracy
count to Mateo, including allegations that many defendants, including Mateo,
agreed to possess with intent to distribute heroin and that the offense involved 1
kilogram or more of heroin. Mateo indicated to the district court that he had
discussed the charge with his attorney and that he understood the charge against
him. Furthermore, Mateo had an extensive criminal history, indicating he had
familiarity with the court system. Nothing in the record as a whole suggests
Mateo did not understand the nature of the conspiracy charge to which he pled
guilty.
Alternatively, Mateo argues that the district court violated Rule 11 by
failing to ensure there was a sufficient factual basis to sustain his conviction.
Under Rule 11(b)(3), the district court, before entering a judgment on a guilty
plea, must first “determine that there is a factual basis for the plea.” Fed. R. Crim.
P. 11(b)(3). This requirement protects “a defendant who mistakenly believes that
15
his conduct constitutes the criminal offense to which he is pleading.” United
States v. Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (quotation marks omitted).
“The standard for evaluating challenges to the factual basis for a guilty plea is
whether the trial court was presented with evidence from which it could
reasonably find that the defendant was guilty.” Id. (quotation marks omitted).
In Mateo’s case, there was a sufficient factual basis for the district court to
accept Mateo’s guilty plea. Mateo admitted the facts in the government’s proffer,
including that: (1) he assisted in distributing at least 1.5 kilograms of heroin
pursuant to codefendant Berrios’s instructions; (2) on one occasion, Mateo
followed Berrios’s instructions to confirm that the warehouse had 500 grams of
heroin; (3) on another occasion, Mateo followed Berrios’s instructions to take 1
kilogram of heroin to another codefendant, Borges, and, while in transit, was
stopped by police, who found 999.3 grams of heroin in Mateo’s car; and (4) when
police searched the warehouse, they found another 2.68 kilograms of heroin.
From these facts, the district court reasonably could find that Mateo was
responsible for distributing over 1 kilogram of heroin pursuant to an agreement
with Berrios.
Moreover, Mateo has not argued, much less shown, a reasonable probability
that, but for either alleged Rule 11 error, he would not have pled guilty. At the
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plea and sentencing hearings, Mateo did not express any reservation about
pleading guilty or indicate a desire to withdraw his plea and proceed to trial. To
the contrary, Mateo’s counsel informed the district court that Mateo did not want
counsel to try the case, but wanted counsel to inform the court that Mateo was
guilty and that Mateo understood that what he did was wrong. Under the
circumstances, Mateo has not shown plain error under Rule 11.
C. Lifetime Supervised Release Term
Mateo argues that his lifetime supervised release term is substantively
unreasonable.6 At the outset, we note that this sentencing issue falls within an
exception to Mateo’s sentence appeal waiver because the district court’s
supervised release term of life exceeded the advisory guidelines range of five
years of supervised release.7
We review the substantive reasonableness of a sentence for abuse of
discretion in light of the totality of the circumstances. Gall v. United States, 552
6
Mateo raises no procedural challenge to the imposition of his supervised release term.
7
Mateo also challenges his designation as a career offender. Mateo’s sentence appeal
waiver precludes review of this issue because it does not fall within any of the appeal waiver
provision’s exceptions. Mateo’s argument that the appeal waiver is unenforceable due to his
diminished capacity is without merit. The district court specifically questioned Mateo about the
sentence appeal waiver, and Mateo confirmed he had discussed the appeal waiver with his
attorney, understood he was giving up his right to appeal his sentence and was doing so freely
and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993).
17
U.S. 38, 51, 128 S. Ct. 586, 597 (2007). The party challenging the sentence bears
the burden of establishing that the sentence is unreasonable in light of both the
record and the § 3553(a) factors.8 United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). Although “[s]entences outside the guidelines are not presumed to be
unreasonable, . . . we may take the extent of any variance into our calculus.”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.
2847 (2009). However, we “must give due deference to the district court’s
decision that the § 3553(a) factors, on the whole, justify the extent of the
variance.” Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Here, Mateo has not met his burden to show that the lifetime term of
supervised release was substantively unreasonable. Mateo has an extensive
criminal history, with many of his offenses involving multiple codefendants. At
sentencing, Mateo’s counsel argued that Mateo may have been manipulated by
others to commit these prior offenses. Dr. Holmes’s evaluation did find that
Mateo’s mental disability impaired his ability to reason, made him susceptible to
8
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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being manipulated by others and significantly contributed to his commission of the
instant offense. And the district court left open the possibility that it would reduce
or terminate supervised release if Mateo responded well to counseling.
Furthermore, the lifetime supervised release term was entirely consistent
with the district court’s grant of a U.S.S.G. § 5K2.13 downward departure for
diminished capacity (an 180-month sentence, which was a departure from the
guidelines range of 262 to 327 months). “Supervised release fulfills rehabilitative
ends, distinct from those served by incarceration.” United States v. Moriarty, 429
F.3d 1012, 1025 (11th Cir. 2005) (quotation marks omitted). Thus, the district
court could reasonably determine that Mateo’s mental disability lessened Mateo’s
culpability and the resulting need for incarceration, while at the same time
increasing Mateo’s need for monitoring and rehabilitation. See id. at 1025; see
also United States v. Johnson, 529 U.S. 53, 59, 120 S. Ct. 1114, 1119 (2000)
(providing that the “primary goal of supervised release is to ease the defendant’s
transition into the community after the service of a long prison term . . . or to
provide rehabilitation to a defendant who . . . still needs supervision and training
programs after release” (citation and brackets omitted)). Given the need to protect
the public and provide supervision and treatment to Mateo, the district court did
not abuse its discretion by imposing a lifetime term of supervised release.
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AFFIRMED.
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