Unpublished Disposition, 935 F.2d 277 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1990)

No. 90-10347.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and RYMER, Circuit Judges, and McDONALD,**  District Judge.

MEMORANDUM*** 

Convicted of Assault on a Federal Officer in violation of 18 U.S.C. § 111 before the Honorable Alfredo C. Marquez, United States District Judge, District of Arizona, defendant-appellant Adalberto Santiago-Ansaldo now appeals contending (1) his waiver of trial by jury was not knowingly and voluntarily made and (2) the district court failed to adequately state its reasons for an upward departure.

While framed as a failure to knowingly and voluntarily waive his right to a trial by jury, defendant-appellant specifically joins in the issue presented for this court's review in his opening brief submitted in United States v. Adalberto Santiago-Ansaldo, No. 90-10344. There, defendant-appellant Santiago-Ansaldo argued that he did not fully understand the nature of the charge against him as required by Fed. R. Crim. P. 11 and thus, did not knowingly and voluntarily enter his plea. For purposes of this appeal we shall consider defendant-appellant's argument as one seeking to invalidate his plea of guilty on grounds that it was not knowingly and voluntarily made.

The longstanding test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970).

The sufficiency of any colloquy between the judge and the defendant as to the nature of the charges depends upon "the peculiar facts of each situation, looking into 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." United States v. Kamer, 781 F.2d 1380, 1384 (9th Cir.), cert. denied, 479 U.S. 819 (1986).

At the plea hearing, the district court judge advised defendant-appellant, represented by appointed counsel, that he was charged with Assault on a Federal Officer. After the government set forth its "factual basis" for the charge, the district court judge inquired of defendant-appellant as to whether the government's representation of his involvement in the assault charge was correct. Defendant-appellant replied that it was correct. There is no question defendant-appellant understood the nature of the charge against him.

Defendant-appellant entered guilty pleas to count 3 of the indictment (assault on a federal officer) in this case and to count 4 of the indictment (possession of a controlled substance with intent to distribute) in CR-88-493. The government agreed that counts 1 and 2 of the indictment in this case would be dismissed and that defendant-appellant's range of incarceration would be 0 to 36 months in this case and 63-78 months in CR-88-493. The sentences were to run consecutively. The government also agreed not to file any additional charges against defendant-appellant as a result of his involvement in the activities that gave rise to the indictment in CR-88-493 and would not file a bail jumping charge.

Defendant-appellant entered pleas in both cases on April 3, 1990. On June 18, 1990 Judge Marquez sentenced defendant-appellant to a 36-month term for assault on a federal officer. It is undisputed that the guideline range, as indicated on page 15 of the presentence investigation report, is 27 to 33 months.

This court reviews a district court's decision to depart from the guidelines under a five-step analysis. United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir. 1990). We must first consider whether the district court adequately stated its reasons for departure.

Review of the sentencing transcript reveals that the district court made no reference to an upward departure.1  Accordingly, this matter shall be remanded for resentencing.

The judgment of conviction is AFFIRMED IN PART, REVERSED IN PART and REMANDED FOR RESENTENCING.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

The Honorable Alan A. McDonald, United States District Judge for the Eastern District of Washington, sitting by designation

 ***

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

Chamber colloquy indicating that 36 months was the sentencing range limit, was inadvertently adopted by the trial judge