United States v. Portillo ( 1994 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-8285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NICHOLAS ARTHUR PORTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
( March 23, 1994 )
Before JONES and DeMOSS, Circuit Judges, and SCHWARTZ1, District
Judge.
DeMOSS, Circuit Judge:
Appellant Portillo was indicted for (1) armed robbery of an
automobile, in violation of 18 U.S.C. § 2119; and (2) use of a
firearm during a crime of violence; in violation of 18 U.S.C. §
924(c). Portillo filed a motion to dismiss the indictment or,
alternatively, to compel the government to elect between the two
counts, arguing that sentencing him for both charges would violate
the Double Jeopardy Clause. The district court denied Portillo's
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
motion, concluding that Congress intended to cumulatively punish
offenders of both statutes.
Portillo unconditionally pleaded guilty to carjacking.
However, his guilty plea to the gun charge was conditional:
2. The Defendant agrees to plead guilty conditionally
under Fed. R. Crim. P. 11(a)(2) to Count Two of the
instant indictment (using a firearm during violent
crime). Specifically, the Defendant reserves the right
to withdraw his guilty plea on this count only if, upon
appellate review sought by either party, he prevails on
his legal argument that he cannot be convicted and
sentenced on Count Two, in addition to being convicted
and sentenced on Count One.
His plea agreement also contained a waiver-of-appeal provision:
13. Except as otherwise provided, the Defendant hereby
expressly waives the right to appeal his sentence on any
ground, including any appeal right conferred by 18 U.S.C.
§ 3742, and the Defendant further agrees not to contest
his sentence in any post-conviction proceeding, including
but not limited to a proceeding under 28 U.S.C. § 2255.
The Defendant, however, reserves the right to appeal the
following: (a) issues specified in Paragraph 2, (b) any
punishment imposed in excess of a statutory maximum, and
(c) any punishment to the extent it constitutes an upward
departure from the guideline range deemed most applicable
by the sentencing court.
Portillo's Presentence Report ("PSR") assessed two criminal
history points for his commitment as a 12-year-old to the Texas
Youth Commission for arson and an additional two points because
Portillo was on "parole" from the Youth Commission at the time he
committed the federal offenses. Portillo objected to the report,
contending that because the juvenile commitment did not involve an
adjudication of guilt, it was not a "sentence" as that term is
defined in the guidelines. The district court overruled the
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objection and adopted the PSR's calculation. The district court
sentenced Portillo to consecutive terms of imprisonment on the
carjacking charge and the gun charge.
Portillo appeals his sentence, arguing that cumulatively
punishing him for carjacking and carrying a gun "during and in
relation to any crime of violence" violates double jeopardy.
Portillo's double jeopardy argument has been foreclosed by this
court's opinion in United States v. Singleton, wherein the court
held that double jeopardy was not offended by cumulative
punishments under both the carjacking statute and the gun statute:
"We are satisfied, however, that Congress has made a
sufficiently clear indication of its intent to impose
cumulative punishments for violations of § 924(c) and all
crimes of violence, including 'carjacking', to satisfy the
requirements of the Double Jeopardy Clause."
No. 93-3479, 1994 WL 71535, * 8, ___ F.3d ___, ___ (5th Cir. March
10, 1994). Portillo's first point of error is therefore denied.
Portillo also contends that the district court erroneously
considered his juvenile commitment in calculating his criminal
history score. The government asserts that Portillo has waived the
right to appeal his sentence on this ground, relying on the waiver-
of-appeal provision of the plea agreement. Portillo responds that
the district court did not specifically admonish him concerning the
waiver-of-appeal provision and that the waiver was uninformed and
thus, invalid.
At the beginning of Portillo's Rule 11 hearing, the court gave
Portillo an opportunity to read over the plea agreement and to have
Portillo's attorney, Mr. Adams, explain it to him. The agreement
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itself, which Portillo signed - thus representing that he
"understood and agreed to [it] in every respect" - is a three-page
letter, consisting of 15 consecutively numbered paragraphs. After
Mr. Adams told the court that his client was ready to proceed, the
following colloquy took place:
THE COURT: OKAY, MR. PORTILLO, HAVE YOU HAD A CHANCE
TO GO OVER THAT DOCUMENT?
PORTILLO: YES, SIR.
THE COURT: COMPLETELY? I MEAN, THIS TELLS ME, WHAT
AGREEMENT HAS BEEN WORKED OUT IN YOUR CASE, AND HOW
EVERYTHING IS GOING TO PROCEED. NOW, IS THIS DOCUMENT
ACCURATE? IS THIS WHAT'S GOING TO HAPPEN IN THIS CASE?
IS THIS YOUR UNDERSTANDING OF WHAT'S GOING TO HAPPEN IN
YOUR CASE?
PORTILLO: YES, SIR.
THE COURT: OKAY. MR. ADAMS, ARE YOU FULLY SATISFIED
THAT HIS DOCUMENT SETS OUT THE AGREEMENT THAT'S BEEN
WORKED OUT, BY YOU, ON BEHALF OF MR. PORTILLO, WITH THE
GOVERNMENT?
MR. ADAMS: YES, YOUR HONOR.
The court proceeded to admonish Portillo concerning the rights
he was forfeiting by pleading guilty. Although the court did not
directly address Portillo's waiver of appeal concerning his
sentence, it indirectly mentioned it by exclusion:
THE COURT: DO YOU REALIZE, THAT BY COMING IN HERE
TODAY, AND PLEADING GUILTY, YOU'RE GIVING UP ALL THESE
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RIGHTS I'VE JUST EXPLAINED TO YOU? NO JURY, NO WITNESSES,
NOTHING. YOU'RE STILL GOING TO HAVE THE RIGHT TO APPEAL
THE CONVICTION, SO THAT IF THERE IS AN IMPROPER CASE, IF
THERE'S ONE TOO MANY CHARGES, IT'S POSSIBLE THAT ONE OF
THESE CHARGES MIGHT BE DROPPED. BUT, ASIDE FROM THAT,
YOU'RE GIVING UP YOUR RIGHT TO A TRIAL, TO A WITNESS, TO
CONFRONTING THE -- TO -- TRIAL TO A JURY, TO CONFRONTING
THE WITNESSES, ALL THOSE RIGHTS ARE GIVEN UP. DO YOU
UNDERSTAND?
PORTILLO: YES, SIR.
THE COURT: DO YOU STILL WANT TO GO THROUGH WITH THIS
GUILTY PLEA AND GIVE UP THOSE RIGHTS?
PORTILLO: YES, SIR.
To be valid, a defendant's waiver of his right to appeal must
be informed and voluntary. U.S. v. Melancon, 972 F.2d 566, 567 (5th
Cir. 1992). A defendant must know that he had a "right to appeal
his sentence and that he was giving up that right." Id. at 968.
Portillo's plea agreement informed him of the right to appeal
his sentence and that by entering into the plea agreement, he would
forfeit that right. Nowhere in the record is there any indication
that Portillo did not understand or was confused by the waiver-of-
appeal provision. Compare United States v. Baty, 980 F.2d 977, 978-
79 (5th Cir. 1992) (defendant's obvious confusion regarding the
waiver provision obligated the district court to insure that
defendant understood her right to appeal and the consequences of
waiving that right). Indeed, the plea agreement was clearly
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written and relatively short. Moreover, Portillo confirmed that he
had read the agreement, understood its contents, and wished to
plead guilty. We hold, therefore, that when the record of the Rule
11 hearing clearly indicates that a defendant has read and
understands his plea agreement, and that he raised no question
regarding a waiver-of-appeal provision, the defendant will be held
to the bargain to which he agreed, regardless of whether the court
specifically admonished him concerning the waiver of appeal.
Accordingly, Portillo's second point of error is denied, and his
sentence is AFFIRMED.2
2
Our holding is further supported by the following colloquy
from Portillo's sentencing hearing at which Portillo's attorney
confirmed his and his client's understanding of and intent to honor
the waiver-of-appeal provision:
THE COURT: . . . [THE PRESENTENCE REPORT] WILL BE
SEALED, AND MADE PART OF THE RECORD. AND SHOULD THERE BE
AN APPEAL, THIS REPORT WOULD BE MADE AVAILABLE FOR
APPELLATE PURPOSES. IS THERE A MOTION BY THE GOVERNMENT
JUST WITH THIS -- JUST THE TWO COUNT?
[GOVERNMENT]: YOUR HONOR, I WOULD JUST LIKE TO NOTE, FOR
THE RECORD THAT THE PLEA AGREEMENT DOES CALL FOR A NO
APPEAL PROVISION. AND APART FROM THAT, YOUR HONOR, I
DON'T BELIEVE THAT THERE IS ANYTHING TO DISMISS.
THE COURT: OKAY.
MR. ADAMS: THAT IS CORRECT, YOUR HONOR. THE PLEA
AGREEMENT HAS BEEN COMPLIED WITH.
THE COURT: OKAY. THERE IS AN APPEAL WITH REGARD TO
THE ISSUE OF THE TWO -- NOT THE SENTENCE, BUT THERE WILL
BE AN APPEAL WITH REGARD TO WHETHER THE TWO CONVICTIONS
CAN STAND.
MR. ADAMS: THAT'S CORRECT.
[GOVERNMENT]: YES, SIR.
MR. ADAMS: YES. . . .
Earlier in the hearing, Portillo's attorney articulated his desire
to "[have] the plea agreement that was negotiated," and promised
the court that if it held the government to its obligations under
the agreement, "there's not going to be an appeal on the
sentence[,] and its that simple." We agree with Mr. Adams, it is
"that simple;" Portillo will be held to the terms of the agreement
to which he pleaded.
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