United States v. Altagracia Suarez ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4802
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALTAGRACIA ACOSTA SUAREZ, a/k/a Charo,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:14-cr-00119-HCM-RJK-5)
Submitted: December 21, 2017 Decided: February 12, 2018
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge
Keenan and Judge Diaz joined.
Andrew M. Stewart, DENNIS, STEWART, KRISCHER, & TERPAK, PLLC, Arlington,
Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia,
Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Defendant-Appellant Altagracia Acosta Suarez was charged with several drug-
related offenses. On November 9, 2015, she pleaded guilty to one count of using
communication facilities to cause, commit or facilitate a felony violation of the
Controlled Substances Act, 21 U.S.C. § 843(b). The district court initially accepted her
plea but, after questioning Acosta Suarez, it determined that she continued to deny
criminal intent. The court thus rejected her plea. Next, Acosta Suarez pleaded guilty to
distribution of cocaine, 21 U.S.C. § 841(a)(1), and aiding and abetting the distribution of
cocaine, 18 U.S.C. § 2. Again, the district court accepted her plea and subsequently
reversed course. This time, it rejected Acosta Suarez’s plea because she did not
completely admit her guilt and because her plea was based on a misunderstanding of the
corresponding plea agreement. We affirm the district court’s rejection of both pleas,
holding that the court exercised its discretion soundly.
I.
In 2012, Acosta Suarez sold cocaine to her coworkers on several occasions. By
May 2013, however, she seems to have stopped selling drugs directly. Instead, she
became an intermediary between a local drug dealer, German Ponce, and one of her
colleagues, Calvin Murphy. For the next year, Acosta Suarez regularly used her cell
phone to schedule cocaine sales between Ponce and Murphy. In June 2014, officers from
the Drug Enforcement Agency observed one of these sales and arrested Ponce. A few
months later, they arrested Acosta Suarez.
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During most of the relevant period, Acosta Suarez’s husband was a confidential
informant for the Immigration and Customs Enforcement Agency (“ICE”). Acosta
Suarez was not.
II.
On December 17, 2014, Acosta Suarez was charged with one count of conspiracy
to distribute and possess with intent to distribute cocaine and two counts of using
communication facilities--i.e., a cell phone--to facilitate felony violations of the
Controlled Substances Act. On March 23, 2015, Acosta Suarez signed a plea agreement
in which she agreed to plead guilty to one count of using communication facilities to help
violate the Controlled Substances Act and the government agreed to drop the remaining
charges.
The case was then assigned to a magistrate judge, who conducted Acosta Suarez’s
plea hearing. At the hearing, the magistrate judge accepted Acosta Suarez’s guilty plea,
but advised her that “[i]t remain[ed] for [the district court] to enter the finding of guilty
and to impose sentence” and that the district court could defer taking such action until
“the presentence report . . . is received and any factual disputes are resolved.” J.A. 65.
On June 15, 2015, the U.S. Probation Office submitted Acosta Suarez’s
presentence report (the “PSR”) to the district court. The PSR recommended that, in
deciding what sentence to impose on Acosta Suarez, the court should consider the
amount of cocaine that she sold to her coworkers and helped Ponce sell to Murphy. Two
weeks later, Acosta Suarez objected to this recommendation, arguing that she should not
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be “attributed with any drug weights” because she was “under the mistaken belief . . . that
she was assisting her husband in gathering information for [federal] law enforcement
officers” when she participated in these drug sales. J.A. 93 (internal quotation marks
omitted). The government opposed this objection.
On July 21, 2015, the district court convened a sentencing hearing. At the
beginning of the hearing, the court adjudged Acosta Suarez guilty. The court stated,
however, that before it could proceed with sentencing it had to resolve Acosta Suarez’s
objection. Specifically, the court needed to determine whether Acosta Suarez disputed
any of the criminal conduct attributed to her in the PSR because, if she did, she would not
be eligible for an “acceptance of responsibility” reduction to her sentence.
To resolve this issue, the district court questioned Acosta Suarez under oath.
During questioning, Acosta Suarez admitted that she had sold cocaine to her coworkers
and scheduled drug deals for Ponce. However, Acosta Suarez explained that she
participated in these illicit transactions because she “felt protected” by her husband’s
connection to ICE and because she wanted to help the federal agents collect incriminating
evidence against Ponce. J.A. 111–12. Based on Acosta Suarez’s testimony, the court
found that she denied the criminal intent element of using communication facilities to
help violate the Controlled Substances Act. Thus, the court reversed its acceptance of
Acosta Suarez’s guilty plea and scheduled the case for trial. The case was also
reassigned to a different district judge.
On November 5, 2015, the government filed a criminal information, charging
Acosta Suarez with distributing cocaine and aiding and abetting the distribution of
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cocaine. Four days later, Acosta Suarez waived her right to an indictment and agreed to
plead guilty to the charges in the criminal information. In exchange, the government
agreed to dismiss all of the other charges pending against her. The parties submitted a
statement of facts in support of the plea agreement, which stated that, in August 2013,
Acosta Suarez organized the sale of 3.5 grams of cocaine.
After a second plea hearing, the district court adjudged Acosta Suarez guilty of
distributing cocaine. The U.S. Probation Office then completed a new PSR for Acosta
Suarez. It recommended that the court should consider, as relevant criminal conduct,
657.28 grams of cocaine that Acosta Suarez helped Ponce distribute from 2013 to 2014.
Acosta Suarez filed an objection to the PSR, arguing that her sentence should be based
solely on the 3.5 grams of cocaine contained in the statement of facts. She also argued
that she should not be held responsible for any additional drug amounts because she only
sold cocaine under the belief that she was helping ICE collect evidence on Ponce.
On February 25, 2016, the district court convened a hearing to resolve Acosta
Suarez’s objection. Acosta Suarez argued that her counsel advised her that, under the
plea agreement, the government could not attribute more than 3.5 grams of cocaine to her
at sentencing. The government responded that the plea agreement did not limit Acosta
Suarez’s responsibility to 3.5 grams. In light of this misunderstanding, the court found
that “there was no meeting of the minds as to the meaning of the plea agreement.” J.A.
225. The court also found that Acosta Suarez’s contention that she was working for ICE
when she scheduled the relevant drug sales indicated that she did not fully admit her
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guilt, foreclosing a factual basis for her guilty plea. Thus, the court rejected the plea
agreement and Acosta Suarez’s guilty plea.
The following week, the court convened an arraignment during which Acosta
Suarez pleaded “not guilty.” J.A. 11. The case then proceeded to trial. After a bench
trial, the court found Acosta Suarez guilty of one count of conspiracy to distribute and
possess with intent to distribute cocaine, one count of aiding and abetting the distribution
of cocaine, and one count of using communication facilities to cause, commit or facilitate
a felony violation of the Controlled Substances Act. The court sentenced Acosta Suarez
to three terms of forty-eight months in prison to run concurrently. This appeal followed.
III.
“A court may reject a plea in exercise of sound judicial discretion.” Santobello v.
New York, 404 U.S. 257, 262 (1971). Acosta Suarez argues that, once a court has
accepted a guilty plea, Federal Rule of Criminal Procedure 11(b)(3) prohibits it from
reversing course and rejecting that plea. According to Acosta Suarez, the court violated
this prohibition and therefore abused its discretion by rejecting each of her guilty pleas
after it had accepted them. Alternatively, Acosta Suarez argues that if a court rejects the
plea agreement under which a guilty plea was entered, Rule 11(c)(5) requires the court to
provide the defendant an opportunity to persist in his or her plea. Acosta Suarez contends
that the district court did not provide her with this opportunity after it found that her
second guilty plea was based on an invalid agreement.
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A.
Our discussion of Acosta Suarez’s first argument proceeds in two parts. First, we
reject her interpretation that Rule 11(b)(3) prohibits a court from rejecting a guilty plea if
the court previously found that the plea had a factual basis. We then conclude that the
district court exercised its discretion soundly when it rejected each of the pleas.
i.
Acosta Suarez argues that, if a court initially finds that a guilty plea has a factual
basis, Rule 11(b)(3) prohibits it from subsequently rejecting the plea, even though new
developments in the case convince the court that the plea lacks a factual basis. We reject
Acosta Suarez’s interpretation of Rule 11(b)(3) because it lacks support in the rule’s text
and is contrary to its purpose.
To begin, Rule 11(b)(3) states, “Before entering judgment on a guilty plea, the
court must determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
The rule creates a condition for entering judgment on a guilty plea. It does not, however,
constrain the court’s ability to reject a plea. In other words, when a court determines that
a defendant’s guilty plea has a factual basis, Rule 11(b)(3) permits the court to impose a
sentence based on that plea, but it does not require the court to do so. Accordingly, the
rule’s text does not support Acosta Suarez’s argument that once a court finds that a
defendant’s guilty plea has a factual basis, it must enter judgment on the plea regardless
of new developments in the case. Indeed, the text weighs in the opposite direction,
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suggesting that if new developments convince a court that a guilty plea lacks a factual
basis, the condition for entering judgment on that plea has not been satisfied.
Second, Acosta Suarez’s interpretation is in tension with the rule’s primary
objective, which is to “protect a defendant who [pleads guilty to a charge] . . . without
realizing that his [or her] conduct does not actually fall within the charge.” McCarthy v.
United States, 394 U.S. 459, 467 (1969) (quoting Fed. R. Crim. P. 11, Notes of Advisory
Committee on Criminal Rules). This objective is undermined by prohibiting a court from
rejecting a guilty plea that it believes lacks a factual basis merely because it came to the
opposite conclusion on a less complete record. On the other hand, Rule 11(b)(3)’s
purpose is well-served by an interpretation that imposes on courts an ongoing duty to
satisfy themselves that a guilty plea has a factual basis in light of any new information
that arises as the case moves towards final judgment.
For these reasons, we are compelled to hold that Rule 11(b)(3) does not constrain
a court’s discretion to reject a guilty plea that lacks a factual basis, regardless of whether
the court previously found that the plea had such a basis.
ii.
The district court did not abuse its discretion by rejecting Acosta Suarez’s first
guilty plea because it reasonably determined that the plea lacked a factual basis.
Similarly, the court did not abuse its discretion by rejecting Acosta Suarez’s second
guilty plea because that plea was based on an incorrect understanding of the agreement
under which it was entered and lacked a factual basis. We discuss each plea in turn.
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We begin with Acosta Suarez’s first plea. A district court exercises its discretion
to reject a guilty plea soundly when it reasonably determines that the plea lacked a factual
basis. See United States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). A guilty plea
lacks a factual basis if the facts admitted to by the defendant are insufficient to constitute
the crime to which he or she is pleading guilty. See McCarthy, 394 U.S. at 467. Here,
Acosta Suarez pleaded guilty to one count of using communication facilities to commit,
cause or facilitate felony violations of the Controlled Substances Act. During the July 21,
2015, hearing, however, Acosta Suarez stated that she only scheduled the cocaine
transactions because she believed that she was helping ICE collect evidence on Ponce
and Murphy. In light of this testimony, the district court’s conclusion that Acosta Suarez
failed to admit criminal intent, and thus did not admit sufficient facts to constitute the
crime to which she was pleading guilty, was reasonable. Accordingly, the court did not
abuse its discretion by rejecting Acosta Suarez’s plea.
We now consider Acosta Suarez’s second guilty plea. A district court acts within
its discretion by rejecting a plea when it determines that defendant entered the plea
without sufficient awareness of the likely consequences. See Brady v. United States, 397
U.S. 742, 748 (1970) (holding that a guilty plea “must be [a] knowing, intelligent act[]
done with sufficient awareness of the relevant circumstances and likely consequences”).
On November 9, 2015, Acosta Suarez pleaded guilty to one count of distributing cocaine
and aiding and abetting the distribution of cocaine. It is undisputed that Acosta Suarez’s
plea was based on her lawyer’s mistaken advice that, under the relevant plea agreement,
she would only be sentenced for the distribution of 3.5 grams of cocaine. During the
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February 25, 2016, sentencing hearing, however, the government stated that it did not
interpret the plea agreement as limiting Acosta Suarez’s responsibility to 3.5 grams of
cocaine and that it would seek a sentence that reflected her distribution of 657.28 grams
instead. Given these statements, the district court reasonably concluded that Acosta
Suarez pleaded guilty without sufficiently understanding the consequences of her plea.
Additionally, the district court found that Acosta Suarez’s objection to the 657.28
grams of cocaine indicated that she continued to deny criminal intent because the
objection was based on her assertion that she had only sold drugs to help ICE investigate
Ponce. This finding reasonably supported the conclusion that her plea lacked a factual
basis. Thus, the district court did not abuse its discretion by rejecting the second plea.
B.
Alternatively, Acosta Suarez contends that Rule 11(c)(5) requires a court to
provide a defendant with the opportunity to persist in his or her guilty plea after the court
determines that the plea was based on an invalid plea agreement. Acosta Suarez argues
that the district court deprived her of that opportunity because it rejected her second
guilty plea after it found that her corresponding plea agreement with the government was
invalid. We find this argument unavailing because it misrepresents the relevant facts and
misconstrues Rule 11(c)(5).
To begin, the district court afforded Acosta Suarez an opportunity to persist in her
second guilty plea after finding that the underlying plea agreement was invalid. Although
the court rejected Acosta Suarez’s plea at the February 25, 2016, sentencing hearing, it
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convened an arraignment the following week to allow her to enter a new plea. There is
no indication in the record, and Acosta Suarez does not contend, that the court prevented
her from entering a guilty plea during the arraignment.
Second, Acosta Suarez’s argument misconstrues Rule 11(c)(5). While the rule
may require a court to provide a defendant with an opportunity to persist in his or her
guilty plea, it does not guarantee that the court will accept that plea. The rule states:
(5) Rejecting a Plea Agreement. If the court rejects a plea agreement . . . ,
the court must do the following on the record and in open court (or, for
good cause, in camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to
follow the plea agreement and give the defendant an opportunity to
withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the
court may dispose of the case less favorably toward the defendant than
the plea agreement contemplated.
Fed. R. Crim. P. 11(c)(5). The rule creates safeguards to ensure that defendants have the
opportunity to withdraw their guilty pleas if a district court determines that they will not
be entitled to the benefits of their plea agreements with the government. But it does not
constrain the court’s separate authority to reject a plea because it determines, for
example, that the defendant entered the plea based on erroneous assumptions about the
consequences of doing so or that the plea lacks a factual basis. The decision to reject a
plea under those circumstances is committed to the court’s discretion, which the district
court exercised soundly in this case when it rejected Acosta Suarez’s second guilty plea.
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IV.
In sum, we hold that the district court did not abuse its discretion by rejecting
either of Acosta Suarez’s guilty pleas. Accordingly, the judgment of the district court is
AFFIRMED.
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