Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1990)

MEMORANDUM^** 

Defendant, Simon Castorena Sotelo, appeals from the district court's denial of his motions to reduce sentence. He contends that the district court erred when it did not advise him of the true consequences of his guilty plea, when it did not conduct a hearing before it allegedly resentenced him, when it did not reduce his sentence, and when it imposed a special assessment. We affirm.

FACTS

Sotelo was indicted in United States v. Simon Castorena Sotelo, et al., No. CR 87-597-CAL (the "Distribution Case") and United States v. Alvaro Julio Echavarria Olarte, et al., No. CR 87-598-CAL (the "Importation Case"). On August 31, 1988, Sotelo pleaded guilty to count 1 (conspiracy to import cocaine) and count 32 (structuring bank transactions) in the Importation Case and count 2 (possession with intent to distribute 500 or more grams of cocaine) and Count 5 (possession with intent to distribute over five kilograms of cocaine) in the Distribution Case.

At the change of plea hearing, Sotelo was advised of the maximum punishments for the counts in the Importation Case to which he agreed to plead guilty. The government stated it would file an information in the Distribution Case to allege a prior conviction for enhancement of sentence. Under this enhancement, Sotelo would be subject to a mandatory minimum sentence of 10 years and a maximum of life on count 2 and a mandatory minimum sentence of twenty years and a maximum sentence of life on count 5. See 21 U.S.C. §§ 841(b) (1) (A); 841(b) (1) (B). The court ascertained that Sotelo understood these punishments.

The court then inquired about the plea agreement. Both parties acknowledged that the penalties in the Distribution and Importation Cases would run concurrently, but said that they would dispute whether the sentences in the Distribution Case would run concurrently or consecutively.

The court told Sotelo that it would set an "appropriate sentence." The court then stated:

And you understand that if that sentence were more severe than you might want or more severe that you've agreed to with the Government, that you would nevertheless have to stand by your guilty plea, you couldn't withdraw it, and you'd have to accept the consequences?

Defendant said he understood.

Sotelo was sentenced on September 28, 1988. On the Distribution Case, he received ten years' imprisonment and eight years' supervised release on count 2 and a consecutive term of twenty years' imprisonment and a concurrent term of ten years' supervised release on count 5. Sotelo was to pay $100 as a special assessment.

On the Importation Case, Sotelo received ten years' imprisonment for count 1, which would run concurrently with the Distribution Case sentences. Sotelo received three years' imprisonment for count 32, which would run concurrently with the sentence for count 1. Sotelo was to pay $100 special assessment.

The next day, September 29, 1988, Sotelo admitted to a prior offense charged in an information filed on September 20, 1988. Judgment was filed on September 30, 1988.

Sotelo filed a motion to correct and reduce sentence on January 26, 1988, within the 120-day period for filing motions under the version of Fed. R. Crim. P. 35(b) applicable to these cases.¹  He alleged that in violation of 21 U.S.C. § 851(a) (1) the prior conviction allegation was not filed before the guilty plea. Furthermore, the court did not require him to affirm or deny the prior conviction before sentencing, and that violated 21 U.S.C. § 851(b). Sotelo sought reduction of sentence because of his allegedly minor role in the offense and his advanced age.

In an order filed March 23, 1989, the district court granted the motion to correct the judgment in the Distribution Case, but denied the motion to reduce sentence in both cases. An amended judgment was filed in the Distribution Case on March 24, 1989. The amended judgment stated that the minimum sentence for count 2 was five years and the minimum for count 5 was ten years.

On April 11, 1989, the district court filed an order extending the time for appeal of its Rule 35 decision in these cases. It ordered that the time for appeal would not run until 10 days from the date of entry of the order extending time and receipt by defense counsel. Sotelo filed his notices of appeal on April 24, 1989. We remanded for further findings regarding excusable neglect, United States v. Sotelo, 907 F.2d 102 (9th Cir. 1990), and on November 2, 1990 the district court made those findings.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291, for although the notice of appeal was filed more than ten days after the entry of judgment, the district court found excusable neglect. That court then extended the time for filing, and the notice of appeal was filed within the extended time.

This court reviews the legality of a sentence de novo. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094, 107 S. Ct. 1309, 94 L. Ed. 2d 163 (1987).

DISCUSSION

Sotelo first contends that the district court erred because it did not advise him of the mandatory minimum sentences that actually applied to his case. He therefore requests that his guilty plea be set aside. Sotelo did not raise this issue before the district court. Fed. R. Crim. P. 32(d) states "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." See United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). Sotelo, however, appeals only from the denial of his motions to reduce sentence under Fed. R. Crim. P. 35(b). This court has stated that Fed. R. Crim. P. 35 presupposes a valid conviction. Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964). Sotelo could not have sought to withdraw his guilty plea by bringing a Rule 35 motion. See United States v. Willis, 804 F.2d 961, 964 (6th Cir. 1986). Therefore an appeal from the decision on the Rule 35(b) motion does not constitute a "direct appeal" for purposes of challenging the guilty plea under Fed. R. Crim. P. 32(d), and we are unable to consider Sotelo's request.

Second, Sotelo contends that he was entitled to be present when the district court denied his motions to reduce sentence. He relies upon Fed. R. Crim. P. 43(a), which requires that the defendant be present at the imposition of sentence. Sotelo was not resentenced. Sotelo contends that the change in minimum possible sentences resulted in an increased sentence. However, the district court did not indicate that it would have sentenced Sotelo at a lower level had the minima been lower. Instead, when the district court sentenced him to thirty years, it noted his extensive narcotics activity, and it concluded that a thirty-year term of imprisonment was justified by the seriousness of his crimes and prior criminal record. Its subsequent action left the sentence unchanged.

Third, Sotelo alleges that the district court improperly increased his sentence, when it was without authority to do so. Sotelo failed to raise this argument before the district court. Therefore, we decline to decide the merits of this argument. See United States v. Carlson, 900 F.2d 1346, 1349-50 (9th Cir. 1990). We do note, however, that the contention appears meritless, since the district court did not increase the sentence at all.

Fourth, Sotelo asks for vacation of the special assessments and cites United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988). However, the Supreme Court has now reversed our decision in Munoz-Flores and has held that the special assessments are valid. United States v. Munoz-Flores, --- U.S. ----, 110 S. Ct. 1964, 109 L. Ed. 2d 384 (1990). Thus, this request must be denied.

AFFIRMED.