United States v. G.Martinez-Cruz ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3903
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Gustavo Martinez-Cruz, *
*
Appellant. *
___________
Submitted: June 15, 1999
Filed: August 17, 1999
___________
Before HANSEN and MAGILL, Circuit Judges, and JONES,* District Judge.
___________
MAGILL, Circuit Judge.
Gustavo Martinez-Cruz pleaded guilty to reentering the United States illegally
as an alien after being deported, in violation of 8 U.S.C. § 1326. He appeals his
conviction and sentence, arguing that his guilty plea is constitutionally infirm and that
his counsel provided ineffective assistance. We affirm.
*
The Honorable John B. Jones, Senior United States District Judge for the
District of South Dakota, sitting by designation.
I.
Martinez-Cruz was arrested on March 20, 1998, in a friend's car outside a
Nebraska motel shortly after Martinez-Cruz's friend, who was in one of the motel
rooms, delivered a large quantity of methamphetamine to undercover police officers.
After the transaction was consummated, the officers arrested Martinez-Cruz and his
friend on charges related to distribution of methamphetamine.
The police discovered that Martinez-Cruz had been deported on February 28,
1995, and that he had not obtained permission to reenter the United States. On April
24, 1998, a two-count indictment charged Martinez-Cruz with (1) possessing with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and (2)
reentering the United States as a deported alien without first obtaining consent of the
United States Attorney General to reapply for admission, in violation of 8 U.S.C. §
1326.
Martinez-Cruz was arraigned by a federal magistrate judge and pleaded not
guilty to both counts of the indictment. He subsequently appeared before the district
court1 and withdrew his not guilty plea on the illegal reentry count and instead pleaded
guilty to that count. Martinez-Cruz made his guilty plea pursuant to a written plea
agreement with the United States. Ultimately, the district court sentenced Martinez-
Cruz to seventy-seven months' imprisonment followed by three years' supervised
release.
Martinez timely appealed, raising two issues. First, he challenges the validity
of his guilty plea. Second, he contends that his trial counsel provided ineffective
assistance.
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
-2-
II.
Martinez-Cruz argues that the district court improperly accepted his guilty plea
because it was not knowingly and voluntarily made, relying primarily on his inability
to speak English. We review de novo the question of whether Martinez-Cruz's guilty
plea is constitutionally valid. See United States v. Gray, 152 F.3d 816, 819 (8th Cir.
1998) (stating validity of plea is mixed question of fact and law reviewed de novo).
To be constitutionally valid, a guilty plea must be knowing, voluntary, and
intelligent. See Parke v. Raley, 506 U.S. 20, 28, 29 (1992) (holding that "guilty plea
must be both knowing and voluntary" and must be a "voluntary and intelligent choice
among the alternative courses of action" available to defendant). Because a guilty plea
constitutes a waiver of three constitutional rights--the right to jury trial, the right to
confront one's accusers, and the privilege against self-incrimination--it must be made
"with sufficient awareness of the relevant circumstances and likely consequences."
Brady v. United States, 397 U.S. 742, 748 (1970). In seeking to ensure that the district
court accepts only knowing, voluntary, and intelligent guilty pleas, Rule 11 of the
Federal Rules of Criminal Procedure directs the court to conduct a colloquy with the
defendant. See Fed. R. Crim. P. 11(c), (d), (f) (requiring court to advise defendant of
rights he will forfeit by pleading guilty, to question defendant regarding voluntariness
of his decision to plead guilty, and to satisfy itself that there is factual basis for plea).
These protections notwithstanding, we have said that "[a] guilty plea is a solemn act not
to be set aside lightly." United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997).
Martinez-Cruz, who speaks only Spanish, submitted a Petition to Enter a Plea
of Guilty (Petition) to the district court. The Petition was written in both Spanish and
English and purported to memorialize his intent to plead guilty to the illegal reentry
count. Martinez-Cruz was represented by counsel who speaks both Spanish and
English. Counsel read to Martinez-Cruz in Spanish each of the questions contained in
the Petition and explained each of the questions to him.
-3-
In the Petition Martinez-Cruz answered "Yes/Si" to certain questions that
inquired about his knowledge of his rights. Specifically, he stated that he understood
that he had a right to plead not guilty to the charge and that by pleading guilty he
forfeited his rights to jury trial, to counsel, to cross-examine government witnesses, to
use the court's subpoena power to compel testimony and production of evidence, not
to incriminate himself, and to be presumed innocent. See Petition at 3-4. Martinez-
Cruz also indicated in his answers that he was aware of the possible punishment for the
offense to which he pleaded guilty. See id. at 5-11. In response to another series of
questions, Martinez-Cruz stated that he was not under the influence of any substance
that interfered with his ability to understand what he was doing and that he was making
the guilty plea of his own volition. See id. at 11-13.
At both the July 22, 1998, plea hearing and the October 30, 1998, sentencing
hearing Martinez-Cruz was assisted by a court-certified Spanish interpreter. At the
plea hearing the district court reviewed the Petition and questioned Martinez-Cruz
regarding his comprehension of the Petition. Martinez-Cruz told the court that he
understood all the Petition's questions, which had been explained to him by his bilingual
counsel, and that all of his answers were true. The district court then conducted a Rule
11 colloquy with Martinez-Cruz. Satisfied with Martinez-Cruz's responses, the district
court made the necessary findings under Rule 11 and accepted the guilty plea.
Nothing in the record supports Martinez-Cruz's contention that his plea was
constitutionally infirm. Martinez-Cruz was provided a Spanish interpreter for the plea
and sentencing hearings, and his counsel, who assisted him in preparing the Petition,
also spoke Spanish. The district court properly advised him regarding his decision to
plead guilty, and Martinez-Cruz's responses to the court's inquiries demonstrate that his
decision was informed and voluntary. We are convinced that Martinez-Cruz's pleaded
guilty knowingly, intelligently, and voluntarily and thus that his plea may not be set
aside.
-4-
III.
Martinez-Cruz also argues that his counsel's advice to plead guilty constituted
ineffective assistance of counsel. We have stated time and again that ineffective
assistance claims are best presented in a motion for post-conviction relief under 28
U.S.C. § 2255. See, e.g., United States v. Scott, 26 F.3d 1458, 1467 (8th Cir. 1994).
Further, Martinez-Cruz did not present his ineffective assistance claim to the district
court but, instead, raises it for the first time on appeal. "This court will not consider an
ineffective assistance claim on direct appeal if the claim has not been presented to the
district court so that a proper factual record can be made." United States v. Kenyon,
7 F.3d 783, 785 (8th Cir. 1993); see also Scott, 26 F.3d at 1467. We therefore decline
to address the merits of Martinez-Cruz's ineffective assistance claim.
IV.
For the foregoing reasons, we affirm Martinez-Cruz's conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-