Unpublished Disposition, 877 F.2d 65 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 65 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Jorge SILVEYRA, Defendant-Appellant.

No. 88-5227.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1989.Decided June 14, 1989.

District Judge Richard A. Gadbois, Jr., Presiding.

Before WRIGHT, FARRIS, and NELSON, Circuit Judges.


MEMORANDUM* 

Jorge Silveyra appeals his conviction and sentence for violation of federal narcotics laws. We affirm in part and remand in part.

FACTS

After receiving information that Raymond Mendoza laundered narcotics proceeds, the Los Angeles sheriff's department placed him under surveillance and observed a large-scale narcotics operation. Recounted here is only that activity related to the defendant Silveyra's motion to suppress evidence taken from his home.

On April 21, 1987, police observed Mendoza drive to the Westward Storage Park. He left locker 72 carrying a box, drove to a parking lot, and made beeper calls. He received a call and drove to the Pioneer Auto Body Shop and gave the box taken from locker 72 to a man identified later as Silveyra. He also took a beeper from one of the Shop's tow trucks.

On the next day, Mendoza drove again to the Westward Storage Park and removed a paper bag from locker 72. He made beeper calls, then drove to a shopping center and gave the bag to a man identified later as Artiga. Deputies believed a narcotics sale had been made and stopped Artiga and found cocaine in the bag. The deputies radioed that information to officers observing Mendoza. Artiga drove away and Silveyra picked up Mendoza in a Pioneer Auto Body Shop truck. Officers arrested them.

Police then obtained a search warrant for ten locations, including locker 72 in which they found three kilograms of cocaine in Silveyra's El Camino. They searched his home and found $365,000, a gun, a money counter, narcotics ledgers, and paper work for lockers B-20 and B-22.

On April 23, police obtained a second warrant to search lockers B-20 and B-22. The first contained $408,200 and a 1976 Cadillac. Locker B-22 contained three kilograms of cocaine hidden in a Chevy El Camino, as did locker 72.

Indicted for violations of narcotics laws, Silveyra moved to suppress the money, money counter and ledgers taken from his residence and the money and cocaine from his storage lockers. After the court denied his motion, he pleaded guilty conditionally to possession of cocaine with intent to distribute. 21 U.S.C. § 841(a) (1). The judge later denied his motions to withdraw his plea and to correct his presentence report. The court gave a prison sentence and added four years of supervised release. Silveyra contended that the judge failed to address him personally.

Silveyra appeals first the denial of his motion to suppress evidence from his home.1  The court found that probable cause did not support the search warrant, but that the good faith exception of United States v. Leon, 468 U.S. 897 (1984), applied. Because the government has not challenged the court's finding, we assume that the warrant lacked probable cause.

We consider if the good faith exception of Leon applies to the home search. The Supreme Court held there that, when an executing officer acts in objectively reasonable reliance on a facially valid search warrant later found invalid, the evidence obtained is admissible. Id. at 922-23; United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988). An officer cannot manifest objective good faith if the affidavit supporting the warrant so lacked "indicia of probable cause as to render official belief in its existence entirely unreasonable."2  Leon, 468 U.S. at 923. We test for reasonable reliance to determine if the affidavit would create disagreement among thoughtful and competent judges as to the existence of probable cause. Id. at 926.

Silveyra contends that this warrant was based on an affidavit so lacking "indicia of probable cause" that the officers could not reasonably rely on it. We disagree. He relies incorrectly on Hove. We found there that the affidavit neither linked the location to be searched to the defendant nor indicated what the police hoped to find. 848 F.2d at 139-40.

Here, police linked Silveyra to his home through subscriber listings and anticipated finding drugs, drug paraphernalia and money. A magistrate finding probable cause may consider an agent's belief based on experience that evidence of drug dealings may be found at a residence. United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). Subscriber listings indicated that Silveyra paid utilities at a Flallon address, a Mission Avenue address and the Pioneer Body Shop. Agent Cortez testified in his affidavit that, based on his experience with large scale drug organizations, the conspirators often use many locations to serve different functions.

The government had also linked Silveyra to Mendoza and his drug activities. Circumstances appearing innocent take on new light when they involve one suspected of drug dealing. See United States v. Potter, 830 F.2d 1049, 1052 (9th Cir. 1987), cert. denied, 108 S. Ct. 1114 (1988). After observing drug transactions that involved packages taken from locker 72, police watched Mendoza deliver a box taken from that locker to the Pioneer Body Shop, which Silveyra owned. They also watched Silveyra pick up Mendoza in a body shop tow truck immediately after Mendoza sold drugs from a bag taken from locker 72.

The affidavit provided enough evidence that reasonable and thoughtful judges would find probable cause.

A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing of a fair and just reason.3  Fed. R. Crim. P. 32(d); United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988). Although a motion to withdraw a guilty plea should be allowed freely, the defendant has the burden to show that the court abused its discretion in denying the motion. Signori, 844 F.2d at 637.

First, Silveyra contends that this court should allow withdrawal of his plea because he thought he pleaded guilty to possession of cocaine in locker B-22, Count VI, not in locker 72, Count V. Count V charged that about April 22, Mendoza and Silveyra knowingly and intentionally possessed three kilograms of cocaine with intent to distribute. Count VI charged that about April 23, Silveyra knowingly and intentionally possessed cocaine with intent to distribute three kilograms to Mendoza.

He argues this distinction is important because the government at sentencing noted that both Mendoza and Silveyra had access to locker 72 as evidence of his complicity.4  We disagree. The court stated specifically that it would not sentence Silveyra for his participation in drug activity with Mendoza.5  Instead, it sentenced him for possession of three kilograms of cocaine with intent to distribute.

Second, Silveyra contends that he should be allowed to withdraw his plea because of Fed. R. Crim. P. 11(c) irregularities.6  United States v. Rios-Ortiz, 830 F.2d 1067, 1070 (9th Cir. 1987) (Rule 32(d) should be read in conjunction with Rule 11). He argues that when he pleaded, the court failed to advise him of the effect of any special parole term under Rule 11(c) (1).7  We examined recently what the court must explain to the defendant about the effect and nature of any special parole term. United States v. Sanclemente-Bejarano, 861 F.2d 206, 209-10 (9th Cir. 1988). It must address him, inform him of any special parole term, and determine if he understands its effect. Id. Here, the court failed to comply with Rule 11(c) (1). It neither asked Silveyra if he understood supervised release nor explained its effect.

Our analysis does not end with our finding of a violation. We consider whether the error was harmless. Rule 11(h) provides that " [a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Although the district court in Sanclemente failed to explain the nature and effect of the special parole term, we found the error harmless because the court advised the defendant that the maximum term was life and sentenced him to less. Id. at 210. Here, the court failed to explain the special parole to Silveyra, but did advise him that the maximum sentence was 40 years. Because Silveyra said he understood the maximum sentence was 40 years and because the court sentenced him to 11 years imprisonment plus four years of supervised release, the error was harmless.

Third, Silveyra contends that the court did not inform him of the nature of the charge. The court under Rule 11(c) (1) must inform the defendant of and determine if he understands the nature of the charges against him.8  United States v. Kamer, 781 F.2d 1380, 1383-84 (9th Cir.), cert. denied, 479 U.S. 819 (1986). In at least two ways, the court may satisfy its obligation to advise the accused. The indictment may be read in open court followed by an opportunity for the defendant to ask questions.9  Alternatively, it may explain the elements of the offense and ask if the defendant understands. United States v. Bernal, 861 F.2d 434, 437 (5th Cir. 1988); Kamer, 781 F.2d at 1384. Intent to distribute requires that the government prove beyond a reasonable doubt that the defendant (1) knowingly (2) possessed a controlled substance (3) with the intent to distribute it.10  United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (citing 21 U.S.C. § 841(a)). We find that the court violated Rule 11(c) (1) by not stating explicitly that knowledge is an element of the offense.

Again we find harmless error under Rule 11(h). The sufficiency of a colloquy between the judge and the defendant varies:

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.

Kamer, 781 F.2d at 1384. The Advisory Committee suggests that harmless error might be found:

[w]here the judge's compliance with subdivision (c) (1) was not absolutely complete, in that some essential element of the crime was not mentioned, but the defendant's responses clearly indicate his awareness of the element.

United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372 (9th Cir. 1988).

The transcript of the plea hearing shows that Silveyra understood that "knowledge" was an element of the offense. This is a simple charge and not one that incorporates esoteric terms or concepts unfamiliar to a lay person. See Bernal, 861 F.2d at 437. The court had the prosecutor explain the nature of the charges and explain what she would attempt to prove at trial. The court then asked Silveyra if he understood the charges, if he discussed them with his attorney and if he had questions. He said he did. His attorney said that he explained the charges to Silveyra. He did not then or now contend that he did not know that knowledge is an element. See Rivera-Ramirez, 715 F.2d at 457. Silveyra's responses indicated his awareness of the requirement of knowledge.

Fourth, Silveyra contends that his attorney told him erroneously to expect a five to six year sentence if he pleaded guilty to Count V. This is essentially an allegation of ineffective assistance of counsel in the context of a guilty plea. Sanclemente, 861 F.2d at 210-11. To make out such a claim, Silveyra must demonstrate that, had he been informed correctly, he would have pleaded not guilty. Id. at 210.

The record shows that counsel did not promise a five to six year sentence. In court Silveyra stated that no one had made promises about the sentence he would receive. "Solemn declarations in open court carry a strong presumption of verity." Moore, 599 F.2d at 314. The court also told him correctly that he could be sentenced to a maximum of 40 years and the statute required a five year minimum. Silveyra has not shown that counsel advised him incorrectly.

III. Compliance with Fed. R. Crim. P. 32(a) (1) (c)

Silveyra contends correctly that at the time of sentencing the court did not address him directly. Fed. R. Crim. P. 32(a) (1) (c) requires that the court, before imposing sentence, address the defendant personally.11  It does not comply with this rule when only defense counsel has the opportunity to speak. United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir. 1980).

Because the court did not address Silveyra directly, we remand for resentencing.

IV. Compliance with Fed. R. Crim. P. 32(c) (3) (d)

Prior to sentencing, Silveyra moved to correct the presentence report. He disputes that:

1. He was involved in a money laundering scheme.

2. He was involved in drug sales with Mendoza.

3. He was tied to items found at places under Mendoza's control.

4. He was equally culpable with Mendoza and that the two were partners or that Silveyra was the dominant partner.

5. Narcotics ledgers in Mendoza's handwriting were found in Silveyra's house.

6. He was a major narcotics dealer.

7. He had prior convictions that involved narcotics or dangerous drugs.

8. He had connections with the drugs found in Mendoza's storage locker or he owned vehicles contained in them.

9. He was involved deeply in cocaine distribution.

10. His offense severity rating was correct.

11. His financial condition was correct.

On remand and, in accord with Fed. R. Crim. P. 32(c) (3) (d), the court must make factual findings about each controverted item or state specifically on the record that it need not decide the question because it would not take the controverted into account in sentencing. See United States v. Fernandez-Angulo, 863 F.2d 1449, 1455-57 (9th Cir. 1988); United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986). The court must attach its findings or a copy of the transcript in which it states it did not take the controverted items into account to any presentence investigation report made available to the Bureau of Prisons.

AFFIRMED IN PART and REMANDED for resentencing.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

He also attacks the court's finding that probable cause supported the second warrant to search lockers B-20 and B-22. This argument is without merit. not only was the first affidavit incorporated by reference, but police had obtained statements from Silveyra's wife that, the night before, he had large amounts of cash that she believed was drug related

 2

Silveyra does not contend that there was an abandonment of the magisterial role or dishonesty or reckless ness on the part of the police in preparing thed affidavit. See Leon, 468 U.S. at 923, United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir. 1986)

 3

Rule 32(d) states:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

 4

We question Silveyra's claim that he did not know to what he pled guilty. He had the assistance of an attorney whom counsel on appeal described as "excellent." He admitted guilty to Count V, said he had no questions about pleading guilty to it, indicated he had discussed the plea with his attorney and signed the plea agreement. Declarations in open court carry a strong presumption of verity. United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024 (1980). We note also that Silveyra and his attorney had eight months to consider the possibility of entering a plea

 5

It stated:

"I'll be happy to say ... that the gentleman pled to three kilos, and that's what he's being sentenced for. I could send him up for forty years on the grand conspiracy, and I would give him a very large part of that if I really believed it.... I'm going to punish him within the factual context of what I think happened, but not for anything else than the three keys for distribution."

 6

Fed. R. Crim. P. 11(c) (1):

"Before accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum penalty provided by law, including the effect of any special parole term and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense."

 7

Although Rule 11(c) (1) refers to a "special parole term," supervised release must also be explained to the defendant. United States v. Sanclemente-Bejarano, 861 F.2d 206, 209-10 (9th Cir. 1988). The two terms are often used interchangeably

 8

Silveyra contends also that he did not understand the nature of the charges because his English is poor. In court, however, he stated that he understood the charges and the judge's questions to him. In fact, he had the judge explain more fully the meaning of the right to a jury trial. Solemn declarations in open court carry a strong presumption of veracity. See United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1985)

 9

The court did not read this indictment

 10

This is not a case in which the district court failed to give any explanation as to the nature of the charges to which the plea was offered. The transcript shows that the court advised him adequately of possession and intent to distribute

COURT: You understnad the nature of the charge--Count V is what?"

U.S. ATTORNEY; Your honor, Count V is possession with intent to distribute.

COURT: Possession with intent, yes, you understand what that is?

SILVEYRA: Yes, I do.

COURT: You don't have any questions about what that charge is?

SILVEYRA: No.

COURT: Obviously you've discussed the matter with [your attorney]?

SILVEYRA: Yes, I did....

THE COURT: Okay. What would you prove if you went to trial on Count Five?

MS. FOX: Your Honor, the Government's evidence would be that Mr. Silveyra owned a vehicle and contained within that vehicle was three kilograms of cocaine in a locker which he had access to.

THE COURT: Is that pretty much true?

THE DEFENDANT: (Nods head.) ...

MS. FOX: Excuse me, your Honor. I would ask the factual basis include he intended to distribute it.

THE COURT: Well, I mean, I buy liquor by the case, but three keys is pretty pure stuff, too, isn't it?

MS. FOX: Yes. Thank you, your Honor.

THE COURT: That's all true, isn't it, Mr. Sherman?

MR. SHERMAN: That you buy it by the case?

THE COURT: Well, no, I just said I did. Three kilos for personal use is a little much, isn't it?

 11

Before imposing sentence, the court under Rule 32(a) (1) (c) must: "address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of the sentence."