United States v. Rene Lara-Castro , 561 F. App'x 346 ( 2014 )


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  •      Case: 12-41322      Document: 00512584383         Page: 1    Date Filed: 04/03/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 12-41322                               April 3, 2014
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                           Clerk
    Plaintiff – Appellee
    v.
    RENE AMADO LARA-CASTRO,
    Defendant – Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:09-CR-1060-1
    Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Rene Amado Lara-Castro pled guilty to one count of knowingly and
    intentionally possessing with intent to distribute more than 1,000 kilograms
    of marijuana in violation of 
    21 U.S.C. §§ 841
    (a)(1) and 841(b)(1)(A). Sentenced
    to a 135 month term of incarceration, he argues to this court that the district
    court’s failure during the Rule 11 plea colloquy to inform him of his right to the
    assistance of court appointed counsel if he could not afford retained counsel
    was reversible plain error. We AFFIRM.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 12-41322     Document: 00512584383    Page: 2   Date Filed: 04/03/2014
    No. 12-41322
    I
    On October 22, 2008, Rene Amado Lara-Castro drove a tractor-trailer
    into the United States Border Patrol checkpoint south of Falfurrias, Texas, for
    an immigration inspection. When questioned about his citizenship status,
    Lara-Castro provided a Border Patrol agent with his United States
    employment authorization card. While this agent was interviewing Lara-
    Castro, another agent conducted a free-air search of the tractor-trailer with a
    service canine. When the service canine alerted to the presence of contraband,
    the agents directed Lara-Castro to drive his tractor-trailer into a secondary
    inspection area.
    Lara-Castro failed to stop in the secondary-inspection area; instead,
    Lara-Castro exited the checkpoint and drove away.         Border Patrol agents
    pursued Lara-Castro, finding his tractor-trailer abandoned less than a mile
    from the checkpoint.    The agents were unable to locate Lara-Castro.         In
    searching the tractor-trailer, the agents found Lara-Castro’s employment
    authorization card, his driver logbook, and a wallet that contained Lara-
    Castro’s driver’s license, social security card, and several credit cards. In the
    trailer, the agents found 143 bundles of marijuana, weighing 2,407.8
    kilograms. Additionally, agents conducted latent fingerprint analysis on items
    located within the trailer, and one of these fingerprints matched with Lara-
    Castro’s known fingerprints.
    Nine days later, Lara-Castro was arrested in Memphis, Tennessee. He
    was indicted on one count of knowingly and intentionally possessing with
    intent to distribute more than 1,000 kilograms of marijuana, pled not guilty,
    and proceeded to a jury trial. Immediately before trial, Lara-Castro objected
    to the Government’s fingerprint evidence, arguing that it should be excluded
    because the Government did not timely produce it and the defense had not had
    an adequate opportunity to retain its own expert to analyze it. The parties
    2
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    No. 12-41322
    agreed that the evidence was important for trial, as Lara-Castro maintained
    that he was not the driver of the tractor-trailer.     The district court then
    excluded the evidence, concluding that its exclusion was warranted by the
    Government’s impermissible, belated production.
    At trial, the jury failed to reach a unanimous verdict. The district court
    declared a mistrial, and scheduled a date for retrial. The district court noted
    that the previously excluded fingerprint evidence would now be admissible, as
    the defense would have an adequate opportunity to retain its own expert.
    Shortly thereafter, Lara-Castro entered a guilty plea to the one count
    charged in the indictment. The district court imposed a guidelines sentence of
    135 months of incarceration to be followed by five years of supervised release.
    Lara-Castro, through counsel, filed a timely notice of appeal, but failed to take
    necessary steps to perfect the appeal. We then dismissed the appeal for want
    of prosecution.
    Lara-Castro filed a pro se 
    28 U.S.C. § 2255
     motion, arguing, inter alia,
    that his trial counsel rendered ineffective assistance by failing to prosecute
    properly his direct appeal. The district court found that Lara-Castro’s counsel
    abandoned him on appeal. The district court then dismissed Lara-Castro’s §
    2255 motion without prejudice, and separately reentered the judgment on his
    criminal conviction. Lara-Castro then timely appealed pro se, and we granted
    his motion for appointment of counsel.
    II
    Lara-Castro argues that the district court erred by not admonishing him
    during the Rule 11 plea colloquy that he had the right to be represented by
    appointed counsel if he proceeded to retrial. Lara-Castro argues that he had
    retained counsel during the district court proceedings, and he was not informed
    by any other sources as to his right to appointed counsel. Lara-Castro contends
    that he has had no previous experience with the criminal justice system, and
    3
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    No. 12-41322
    his limited formal education and basic literacy skills support his contention
    that he had no knowledge of his legal rights.
    Our review is limited to plain error because Lara-Castro failed to object
    in the district court to the sufficiency of the plea colloquy. 1 To establish plain
    error, Lara-Castro must demonstrate (i) error, (ii) that is plain, and (iii) that
    effects his substantial rights. 2 To “demonstrate that his substantial rights
    were affected by the district judge’s alleged failure to explain” the right to
    appointed counsel, 3 Lara-Castro “must show a reasonable probability that, but
    for the error, he would not have entered the plea.” 4 If Lara-Castro establishes
    these three elements, we have discretion to correct plain error where it
    “seriously affect[s] the fairness, integrity, or public reputation of judicial
    proceedings.” 5
    Before accepting a plea of guilty, Federal Rule of Criminal Procedure
    11(b)(1)(D) requires the district court to “inform the defendant of, and
    determine that the defendant understands . . . the right to be represented by
    counsel—and if necessary have the court appoint counsel—at trial and at every
    other stage of the proceeding[.]” A Rule 11 omission maybe harmless where
    the record shows that there was an implicit admonition and the defendant
    understood the right he was giving up, 6 or where the omitted admonitions were
    in the plea agreement. 7
    1 See United States v. Vonn, 
    535 U.S. 55
    , 59 (2002); United States v. Oliver, 
    630 F.3d 397
    , 411–12 (5th Cir. 2011).
    2 See United States v. Olano, 
    507 U.S. 725
    , 732 (1993).
    3 Oliver, 
    630 F.3d at 412
    .
    4 
    Id.
     (quoting United States v. Dominguez Benitez, 
    542 U.S. 74
    , 83 (2004)).
    5 
    Id.
     (quoting Olano, 
    507 U.S. at 732
     (1993)).
    6 See, e.g., United States v. Bachynsky, 
    949 F.2d 722
    , 725–26 (5th Cir. 1991) (“A
    verbatim reading of Rule 11 . . . to the defendant is not required as long as the defendant
    understands the rights he forfeits by pleading guilty.”).
    7 See, e.g., United States v. Cuevas-Andrade, 
    232 F.3d 440
    , 444–45 (5th Cir. 2000)
    (harmless error where the “penalties . . . were fully and accurately explained in the signed
    plea agreement”).
    4
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    No. 12-41322
    It is undisputed that the district court failed to inform Lara-Castro of his
    right to court appointed counsel. 8 And there is no basis in the record for
    concluding that Lara-Castro at rearraignment was otherwise informed of his
    right to court appointed counsel in the course of the plea colloquy; there is no
    indication in the plea colloquy that Lara-Castro was implicitly admonished of
    this right, nor was this admonition contained within the written plea
    agreement. Thus, the district court clearly erred by not insuring that Lara-
    Castro was admonished in accordance with Rule 11(b)(1)(D).
    We turn to whether Lara-Castro has established that the district court’s
    error affected his substantial rights. Lara-Castro argues (i) that he was never
    made aware of his right to the appointment of counsel, and (ii) that he was
    “obviously willing to go to trial,” and he, therefore, suggests that he would not
    have pled guilty but for the district court’s omission.
    On review of the record, we conclude that Lara-Castro has failed to
    establish that the district court’s error affected his substantial rights. To begin
    with, Lara-Castro was twice informed of his right to appointed counsel prior to
    the plea colloquy. 9 At his initial appearance, Lara-Castro was advised of his
    rights and signed a waiver indicating that he has been informed of his right to
    “retain counsel or request the assignment of counsel if [he is] unable to retain
    counsel[.]” 10 Likewise, a counsel determination hearing was held to determine
    whether Lara-Castro required appointed counsel. 11 Here, we find that Lara-
    8 See Appellee’s Br. at 24 (“It is undisputed that, at rearraignment, the district court
    did not inform Lara . . . of his right to have counsel appointed ‘if necessary.’”).
    9 See United States v. Mason, 480 F.App’x 329, 333 (5th Cir. 2012) (unpublished, per
    curiam) (“the record reveals that [defendant] was aware of his right to appointed trial counsel
    notwithstanding the district court’s error”).
    
    10 R. 23
    .
    11 Supp. R. 26 (the magistrate judge explained to Lara-Castro that “you’re here today
    because it’s my understanding you haven’t retained an attorney, and I was under the
    impression you needed a court appointed attorney”).
    5
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    Castro was made aware of his right to appointed counsel prior to the plea
    colloquy, and we find no reason to conclude that Lara-Castro did not recall
    these prior admonitions regarding his right to appointed counsel. 12
    Second, Lara-Castro has failed to demonstrate a reasonable probability
    that, but for the district court’s error, he would not have pled guilty. To be
    sure, Lara-Castro argues that he was “obviously willing to go to trial,” yet this
    does not establish a reasonable probability that, but for the Rule 11 error, he
    would have proceeded to trial. Importantly, the district court made clear that
    additional inculpatory evidence—namely, the fingerprint evidence linking
    Lara-Castro with the contents of the tractor-trailer—would have been
    admissible in a retrial. 13 And there is no indication in the record that the Rule
    11 error can reasonably be viewed as having been a material factor affecting
    Lara-Castro’s decision to plead guilty.              Lara-Castro was represented by
    retained counsel throughout the district court proceedings, and there is no
    indication that he either needed or qualified for appointed counsel at the time
    of his guilty plea. Although Lara-Castro suggests that he might have had
    concerns about the ability to afford retained counsel for a second, he does not
    allege that he would have been without counsel had he proceeded to retrial. 14
    Accordingly, the district court’s Rule 11 error does not constitute plain error.
    For these reasons, we AFFIRM.
    12  C.f. Vonn, 
    535 U.S. at 75
     (“Because there are circumstances in which defendants
    may be presumed to recall information provided to them prior to the plea proceeding, . . . the
    record of [defendant’s] initial appearance and arraignment is relevant in fact, and well within
    the Advisory Committee’s understanding of ‘other portions . . . of the limited record’ that
    should be open to consideration.”).
    13 Supp. R. 62
    14 See United States v. Nogales, No. 98-50655, 
    2000 WL 634629
     (5th Cir. May 4, 2000)
    (Defendant “simply asserts that he ‘might have been’ worried about not being able to afford
    an attorney. Generalized speculation about possible harm certainly does not amount to an
    affect on [defendant’s] substantial rights.”).
    6
    

Document Info

Docket Number: 12-41322

Citation Numbers: 561 F. App'x 346

Judges: Davis, Haynes, Higginbotham, Per Curiam

Filed Date: 4/3/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023