IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
CASE NO. 04-20724
_________________
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
EVARISTO BELTRAN RODRIGUEZ
Defendant–Appellant.
___________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS
___________________________________________________
BRIEF OF APPELLANT
PURSUANT TO ANDERS v. CALIFORNIA, 386 U.S. 738 (1967)
F. CLINTON BRODEN
Broden & Mickelsen
2707 Hibernia
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
Attorney for Appellant
Evaristo Beltran Rodriguez
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the Judges of this Court may evaluate possible disqualifications or
recusal.
Appellant, EVARISTO BELTRAN RODRIGUEZ, pled guilty and was
sentenced before the Honorable DAVID HITNER, United States District Judge
for the Southern District of Texas.
Appellant was represented below by DICK WHELLAN and is represented
on appeal by F. CLINTON BRODEN of the law firm BRODEN &
MICKELSEN.
The Appellee, the United States of America, was represented in the
proceedings below by TED IMPERATO, Assistant United States Attorney for the
Southern District of Texas and is represented on appeal by JAMES TURNER,
Assistant United States Attorney for the Southern District of Texas.
__________________________
F. Clinton Broden
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested. Counsel has moved to withdraw and has
filed this brief pursuant to Anders v. California, 386 U.S. 738 (1967). After careful
study of the record and the applicable law, it is the good faith belief and
professional opinion of counsel that this case presents no meritorious points for
appeal on which the Appellant could possibly prevail.
TABLE OF CONTENTS
Page No.
CERTIFICATE OF INTERESTED PERSONS
STATEMENT REGARDING ORAL ARGUMENT
TABLE OF CONTENTS
iii
TABLE OF AUTHORITIES
iv
STATEMENT OF JURISDICTION
i
ii
1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 3
A.
Proceedings Below
B.
Statement of the Facts
SUMMARY OF ARGUMENT
3
3
5
ARGUMENT
6
MR. RODRIGUEZ'S PLEA OF GUILTY WAS VOLUNTARILY
MADE PURSUANT TO RULE 11 OF THE FEDERAL
RULES OF CRIMINAL PROCEDURE.
6
CONCLUSION
9
CERTIFICATE OF SERVICE
11
TABLE OF AUTHORITIES
Page No.
Cases
Anders v. California, 386 U.S. 738 (1967)
ii, 9
Baker v. United States, 781 F.2d 85 (6th Cir. 1985), cert. denied, 479 U.S.
1017 (1986)
7
Boykin v. Alabama, 395 U.S. 238 (1969)
8
McCarthy v. United States, 394 U.S. 459 (1969)
8
United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert.
denied, 445 U.S. 904 (1980)
7-8
United States v. Howard, 991 F.2d 195 (5th Cir. 1993
Statutes
18 U.S.C. § 924(c)
18 U.S.C. §3742
3
1
21 U.S.C. § 841(a)(1),
28 U.S.C. § 1291
Fed. R. Crim. P. 11
3
1
passim.
6
STATEMENT OF JURISDICTION
The jurisdiction of this Court may be invoked pursuant to 28 U.S.C. § 1291
as an appeal from a final judgment entered by the United States District Court for
the Southern District of Texas. Furthermore, jurisdiction to review the sentence
imposed in this case may be invoked pursuant to 18 U.S.C. §3742(a) as an appeal
of a sentence imposed under the Sentencing Reform Act of 1984.
STATEMENT OF THE ISSUE
Whether Mr. Rodriguez’s plea of guilty was voluntarily made pursuant to
Fed. R. Crim. P. 11.
STATEMENT OF THE CASE
A.
Proceedings Below
On March 1, 2004, the Appellant, Evaristo Beltran Rodriguez, and Ismael
Moreno Rodriguez were charged in a three count indictment. Evaristo Rodriguez
was charged in Count 1 with possessing with the intent to distribute more than 500
grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), and in Count 2 with
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c), Evaristo Rodriguez was not charged in Count 3. See Excerpts at
3.1 Mr. Rodriguez subsequently entered a guilty plea to both counts.
On August 6, 2004, the Honorable David Hitner sentenced Mr. Rodriguez to
sixty months of imprisonment on Counts 1 and 2 to run consecutively, a five year
term of supervised release and a $200 mandatory special assessment. See Excerpts
at 4.
Mr. Rodriguez filed a timely notice of appeal on August 12, 2004 and this
appeal follows. Id. at 2.
B.
Statement of the Facts
In connection with his guilty plea, Mr. Rodriguez admitted the following
facts to be correct:
11
References to the Record Excerpts ("Excerpts") refer to the tab number. References to
the Record ("Rec.") refer to the volume number:tab number. The transcript of Mr. Rodriguez’s
guilty plea can be found at Volume III of the record and in the Excerpts at Tab 5.
If this matter had gone to trial, the government would prove
beyond a reasonable doubt that on January 29, 2004, Oscar Garcia, an
officer working with the DEA, acting in an undercover capacity,
contacted Evaristo and was informed that Evaristo would sell three
kilograms to Officer Garcia the next day.
January 30, 2004, DEA set up surveillance of Evaristo’s
residence and followed Evaristo and Ismael Rodriguez, who drove to
the Food Town Grocery Store, located in Houston, Southern District
of Texas. Officer Garcia met with Evaristo at the location and entered
his vehicle. While inside Evaristo’s vehicle, Garcia observed a
firearm between Evaristo’s legs and cocaine in the pocket of
Evaristo’s jacket. Officer Garcia exited Evaristo’s vehicle and
instructed the other agents to initiate a traffic stop of Evaristo’s
vehicle, as well as Ismael’s vehicle. As the agents attempted to make
a traffic stop...
After Evaristo was apprehended, agents located two bricks of
cocaine -- one was located in the small of his back -- and a loaded
Smith & Wesson, model MOD 915, 9-millimeter caliber handgun, on
the ground near where Evaristo was apprehended. The Smith &
Wesson 9-millimeter caliber handgun was examined by ATF Special
Agent Steve Seale and, based on his examination, Special Agent Seale
determined that the firearm functioned as designed and met the
statutory definition of a firearm.
Forensic chemist Tamara Dallabetta-Keller tested the substance
at the DEA laboratory and determined it to be cocaine with a net
weight of 1003 grams.
Rec. at III:9-10
SUMMARY OF ARGUMENT
Mr. Rodriguez entered a knowing and voluntary plea of guilty. The District
Court properly admonished Mr. Rodriguez at the Rule 11 hearing and complied
with the dictates of Rule 11 and the applicable case law.
ARGUMENT
MR. RODRIGUEZ'S PLEA OF GUILTY WAS VOLUNTARILY MADE
PURSUANT TO RULE 11 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.2
Throughout the Rule 11 proceeding, the District Court in this case
personally and in open court addressed Mr. Rodriguez (Rec. at III:2-12). See Fed.
R. Crim. P. 11(b). The District Court ensured that Mr. Rodriguez understood (1)
the nature of the charge to which he was pleading guilty (Rec. at III:4-5); (2) the
maximum penalty provided by law including the supervised release term,
restitution and fines (Rec. at III:5); and (3) the application of the sentencing
guidelines (Rec. at III:7-8). See Fed. R. Crim. P. 11(b)(1). During the proceeding,
Mr. Rodriguez was represented by an attorney and he had the charges against him
and the rearraignment proceedings translated. (Rec. at III:2-12)
The District Court informed Mr. Rodriguez that he had (1) the right to plead
“not guilty” (Rec. at III:6); (2) the right to a jury trial on the charges in the
indictment (Rec. at III:6); (3) the right to assistance of counsel at trial (Rec. at
III:6); and (4) the right to confront and cross examine adverse witnesses, the right
against compelled self–incrimination and the right to present evidence in his own
behalf (Rec. at III:6). See Fed. R. Crim. P. 11(b)(1). Mr. Rodriguez was informed
that he would be giving up these rights by pleading guilty (Rec. at III:6-7). Id.
The District Court did not accept Mr. Rodriguez's guilty plea without first
addressing Mr. Rodriguez and determining that the plea was voluntary and not the
result of force, threats, coercion or other promises aside from the plea agreement
(Rec. at III:9).
See Fed. R. Crim. P. 11(b)(2).
The District Court further
determined that there was a factual basis for the plea before accepting Mr.
Rodriguez's plea of guilty (Rec. at III:10-11). See Fed. R. Crim. P. 11(b)(1)(3).
In United States v. Dayton, 604 F.2d 931, 943 (5th Cir. 1979) (en banc),
cert. denied, 445 U.S. 904 (1980), this Court addressed the requirements by which
a plea of guilty is acceptable under Fed. R. Crim. P. 11:
What is necessary is that the trial court, given the nature of the
charges and the character and capacities of the defendant, personally
participate in the colloquy mandated by Rule 11 and satisfy himself
fully that, within those limits, the defendant understands what he is
admitting and what the consequences of that admission may be, as
well as that what he is admitting constitutes the crime charged, and
that his admission is voluntary made.
Likewise, the United States Court of Appeals for the Sixth Circuit has explained
that for a guilty plea to be valid it must be both knowing and voluntary. Baker v.
United States, 781 F.2d 85, 88 (6th Cir. 1985), cert. denied, 479 U.S. 1017 (1986).
The Court in Baker recognized that, under Rule 11, the district court must examine
the defendant "as to his competence to plead, his understanding of the
The voluntariness of a guilty plea is a question of law reviewed de novo. United
States v. Howard, 991 F.2d 195 (5th Cir. 1993).
2
consequences of his actions in pleading guilty, and his voluntariness, before
accepting the plea." Id.
At the rearraignment in this case, the District Court followed the
requirements of Rule 11 as outlined above. Acceptance of the plea of guilty is
deemed a positive finding that the accused has done so "voluntarily,
understandingly and with knowledge of the consequences of this plea..." Dayton,
604 F. 2d at 939. Mr. Rodriguez's arraignment complied with Fed. R. Crim. P. 11
and with the United States Constitution. See McCarthy v. United States, 394 U.S.
459 (1969); Boykin v. Alabama, 395 U.S. 238 (1969). Mr. Rodriguez's plea was
both knowing and voluntary. The District Court, given the nature of the charges
and the character and capacities of the defendant, satisfied the prerequisites for a
full colloquy and the Court was satisfied that Mr. Rodriguez understood the
charges and that his plea was voluntary.3
33
Ultimately, Mr. Rodriguez was sentenced to the mandatory minimum sentence on both
counts to which he pleaded guilty.
CONCLUSION
In accordance with Anders v. California, 386 U.S. 738 (1967), counsel has
examined the record for issues which might arguably support an appeal. In the
opinion of counsel, as discussed above, Mr. Rodriguez entered a knowing and
voluntary plea of guilty. Accordingly, counsel moves to withdraw from this case
in accordance with Anders v. California, and asks the court to rule on this appeal in
accordance therewith.
Respectfully submitted,
______________________________
F. Clinton Broden
Broden & Mickelsen
2707 Hibernia
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
Attorney for Appellant
Evaristo Beltran Rodriguez
CERTIFICATE OF SERVICE
I, F. Clinton Broden, certify that, on May 23, 2005, I caused two (2) paper
copies and one electronic copy of the foregoing Brief of Appellant to be deposited
in the United States Mail, first–class, postage paid, addressed:
Joseph Turner
Assistant United States Attorney
910 Travis, Suite 1500
Houston, Texas 77002
I further certify that, on May 23, 2005, a copy of the brief was deposited in
the United States Mail, first–class, postage paid,
Evaristo Rodriguez
#16243-179
FCI Beaumont
P.O. Box 26020
Beaumont, Texas 77720
___________________________
F. Clinton Broden