United States v. Andres Banda-Collazo , 378 F. App'x 425 ( 2010 )

Case: 09-20354 Document: 00511109851 Page: 1 Date Filed: 05/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2010
No. 09-20354
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES BANDA-COLLAZO, also known as Andres Collazo-Banda, also known
as Andres Banda Collazo, also known as Andres Collazo Bonda,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-86-1
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Andres Banda-Collazo appeals his guilty plea conviction and sentence for
being found unlawfully in the United States after having been removed following
a prior aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2).
Banda-Collazo contends that his guilty plea was not knowing and voluntary
because trial counsel was ineffective in failing to explain his speedy trial rights
and move for the dismissal of the charges in the district court. He also contends
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-20354
that the district court did not specifically explain at the rearraignment hearing
that by pleading guilty, he would be waiving his right to challenge speedy trial
violations under the Sixth Amendment, as well as the Speedy Trial Act. Because
Banda-Collazo did not raise these claims in the district court, plain error review
applies. See United States v. Vonn, 535 U.S. 55, 58-59 (2002).
The record shows that Banda-Collazo’s guilty plea was knowing and
voluntary. In addition to advising him of the various trial rights he would be
waiving by pleading guilty, the district court specifically explained that he was
giving up his right to claim that his right to a speedy trial was violated. Banda-
Collazo stated that he understood. The district court ascertained that Banda-
Collazo was competent to plead guilty, that he was not under the influence of
any substances, that he understood the nature of the charges and the maximum
penalty, that his plea was not the result of threats or force, and that there was
a factual basis for the plea. Banda-Collazo confirmed that he had sufficient time
to discuss his case with counsel and that he was pleading guilty freely and
voluntarily. His statements at the rearraignment hearing carry a strong
presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Therefore, Banda-Collazo has not shown error, plain or otherwise.
Banda-Collazo waived his Sixth Amendment speedy trial claim when he
entered a voluntary and unconditional guilty plea. See United States v. Bell, 966
F.2d 914, 915 (5th Cir. 1992). Further, his Speedy Trial Act claim is not subject
to appellate review because he did not raise it in the district court. See 18 U.S.C.
§ 3162(a)(2); United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir. 1997).
Banda-Collazo contends that the lack of a signature and date on his
indictment violated his Fifth Amendment right to due process and his Sixth
Amendment right to a jury trial. This challenge to his indictment was also
waived by his voluntary and unconditional guilty plea. See United States v.
Daughenbaugh, 549 F.3d 1010, 1012-13 (5th Cir. 2008).
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No. 09-20354
Banda-Collazo contends that the indictment was defective because it failed
to identify his prior aggravated felony conviction. He argues that his prior
conviction was an element of the offense and, thus, should have been specifically
identified in the indictment. Banda-Collazo’s argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). See United States
v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
Banda-Collazo’s related argument that the 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(i) was unconstitutional because it was based on the
fact of a prior conviction that was not alleged in the indictment and proved to a
jury beyond a reasonable doubt, is likewise foreclosed. See United States v.
Booker, 543 U.S. 220, 244 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490
(2000).
Finally, the record is not sufficiently developed to permit direct review of
Banda-Collazo’s claim that trial counsel was ineffective in failing to explain his
speedy trial rights and move for the dismissal of the charges in the district court.
See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Therefore,
we decline to consider this claim, without prejudice to Banda-Collazo’s right to
raise it in a 28 U.S.C. § 2255 motion. See id.
Although several of Banda-Collazo’s claims were waived and foreclosed by
circuit precedent, counsel failed to identify and address the controlling
precedent. Counsel is therefore reminded of his duty to research the law and
facts and to address controlling precedent. See United States v. Fields, 565 F.3d
290, 294 (5th Cir.), cert. denied, 130 S. Ct. 298 (2009).
Accordingly, the district court’s judgment is AFFIRMED.
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