911 F2d 739 United States v. Corrales-Hernandez

911 F.2d 739

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Ricardo CORRALES-HERNANDEZ, Defendant-Appellant.

No. 89-10368.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 20, 1990.*
Decided Aug. 22, 1990.

Before TANG, ALARCON and WIGGINS, Circuit Judges.

1

MEMORANDUM**

2

Jose Ricardo Corrales-Hernandez appeals his conviction, following a guilty plea, for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(vii), and 846. Corrales-Hernandez contends that the district court erred by accepting his guilty plea because it was not knowingly and voluntarily made and therefore is void under Fed.R.Crim.P. 11. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

3

The voluntariness of a guilty plea is a question of law reviewed de novo. Marshall v. Loneberger, 459 U.S. 422, 431 (1983); Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir.1986). On direct appeal, we review the district court's findings of historical facts regarding voluntariness of a plea for clear error. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986).

4

Before accepting a guilty plea, the district court must demonstrate in the record at the time the plea is accepted that the defendant knows and understands the nature of the charge to which he intends to plead guilty. Fed.R.Crim.P. 11(c)(1); United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.1986), cert. denied, 479 U.S. 819 (1986). Automatic reversal of the acceptance of a guilty plea is required when the district court fails to ensure that the defendant understands the nature of the charges. United States v. Rivera-Ramirez, 715 F.2d 453, 455 (9th Cir.1983), cert. denied, 467 U.S. 1215 (1984).

5

[T]he sufficiency of any particular colloquy between the judge and the defendant as to the nature of the charges will "vary from case to case, depending on the peculiar facts of each situation, looking to both the complexity of the charges and the personal characteristics of the defendant, such as his age, education, intelligence, the alacrity of his responses, and also whether he is represented by counsel."

6

Kamer, 781 F.2d at 1384 (quoting United States v. Wetterlin, 583 F.2d 346, 351 (7th Cir.1978), cert. denied, 439 U.S. 1127 (1979)).

7

Where the charge is conspiracy, the judge accepting the plea must either apprise the defendant of the " 'law of conspiracy generally or by reference to the specific charge of [the] case' " or personally inquire and determine that the defendant understands the nature of the charges. Kamer, 781 F.2d at 1384 (quoting Wetterlin, 583 F.2d at 350). "The elements of conspiracy are: (1) an agreement to accomplish an illegal objective, (2) coupled with one or more acts in furtherance of the illegal purpose, and (3) the requisite intent necessary to commit the underlying substantive offense." United States v. Cloud, 872 F.2d 846, 852 (9th Cir.1989), cert. denied, 10 S.Ct. 561 (1989).

8

Here, the following colloquy occurred between Corrales-Hernandez and the judge accepting his plea:

9

THE COURT: Okay, Jose Ricardo, you are pleading guilty to Count 2, which charges that on ... February the 11th of this year, you and the other defendants knowingly and intentionally conspired or agreed with each other, and with other persons to distribute the 523 pounds of marijuana.

10

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11

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12

* * *

13

Jose Ricardo, do you have any questions about the charge?

14

CORRALES-HERNANDEZ: No.

15

THE COURT: You understand what the government says that you did in connection with that charge?

16

CORRALES-HERNANDEZ: Yes.

17

(RT 5/9/89 at 8-9). After this interchange, the judge had the prosecutor state the factual basis for the plea and gave Corrales-Hernandez the opportunity to dispute any of the facts stated by the prosecutor.1 There then followed another exchange between the judge and Corrales-Hernandez:

18

THE COURT: Jose Ricardo, you heard what the government says was your involvement in this matter. Is what the government says correct?

19

CORRALES-HERNANDEZ: Well, yes, but I mean I am pleading guilty to cooperating, and loading it, but also--there, can be, and there are other peoples which one doesn't know, and they are more guilty than we are, and the government should be after those people, and punish them, too.

20

THE COURT: All right. Where were you taking the marijuana?

21

CORRALES-HERNANDEZ: Well, no, I don't know where my brother was taking it.

22

THE COURT: You knew that it was marijuana?

23

CORRALES-HERNANDEZ: Yes, I did know.

24

THE COURT: And as far as you knew, it was going to be delivered some place?

25

CORRALES-HERNANDEZ: Well, he was asked to do it. He was ordered to do it, and he did not tell me who he was taking it to.

26

THE COURT: Were you going to be paid for helping in this?

27

CORRALES-HERNANDEZ: No, he did not tell me that he was going to pay me, but perhaps he was going to give me some money from the money that he was going to make.

28

(RT 5/9/89 at 12-13).

29

Corrales-Hernandez was represented by counsel. Although he had only a fifth grade education, Corrales-Hernandez appeared to understand the questions posed to him by the judge and responded promptly and to the point. Additionally, he was faced with a relatively simple conspiracy charge. The initial interchange between Corrales-Hernandez and the district judge served to notify him of the type of charge he was facing and that conspiracy was a form of agreement to commit a crime. In the second interchange, Corrales-Hernandez admitted to each of the elements of the conspiracy: (1) that he had agreed with his brother to accomplish an illegal objective by helping him to transport marijuana; (2) that he had acted in furtherance of this illegal purpose by loading the marijuana; and (3) that he intended to load the marijuana and deliver it to others. See Cloud, 872 F.2d at 852.

30

Therefore, the colloquy between the judge and Corrales-Hernandez sufficiently demonstrated Corrales-Hernandez' grasp of the nature of the charges to which he pleaded guilty, and the district court properly accepted the guilty plea. Cf. Kamer, 781 F.2d at 1384.

31

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The prosecutor noted that Corrales-Hernandez arrived in a black pickup truck at the area where the marijuana was located. Corrales-Hernandez and another individual loaded the bales of marijuana into the pickup truck. Corrales-Hernandez then left the area in the pickup truck and was subsequently stopped by Customs officers who had been monitoring the marijuana drop site