United States of America, Plaintiff-appellee, v. Severiano Antonio-cruz, Defendant-appellant, 142 F.3d 446 (9th Cir. 1998)

MEMORANDUM^* 

Severiano Antonio-Cruz appeals his conviction by guilty plea to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Antonio-Cruz contends that his guilty plea was not knowing and voluntary, and that his sentence contravened his written plea agreement. We review de novo the voluntariness of a guilty plea. See United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir. 1997). We review for clear error a district court's findings of fact regarding the validity of a plea. See Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Antonio-Cruz argues that his guilty plea was not knowing and voluntary because his limited education and English language skills prevented him from understanding the rights he waived and the penalties he faced as a result of pleading guilty. The record reveals that this claim is meritless. During an extensive colloquy conducted through a Spanish-language interpreter, Antonio-Cruz stated that he understood the charge against him and the consequences of pleading guilty. Further, Antonio-Cruz stated that he understood that the district court was not bound by the sentencing recommendation contained in the plea agreement and therefore had the discretion to disregard the recommendation and impose a longer sentence. Antonio-Cruz's plea was both knowing and voluntary. See Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976) (stating that a guilty plea is voluntary if the defendant is informed of and understands the elements of the offense); United States v. Rubalcaba, 811 F.2d 491,494 (9th Cir. 1987) (stating that solemn declarations in open court carry a strong presumption of verity); Fed. R. Crim. P. 11(c) (3).

Antonio-Cruz's contention that the sentence imposed by the court contravened his plea agreement by imposing a "probationary term" is equally unavailing. Antonio-Cruz pled guilty pursuant to Fed. R. Crim. P. 11(e) (1) (B), which stipulates that the district court is not bound by the sentencing recommendation contained in a plea agreement. See Fed. R. Crim. P. 11(e) (1) (B); cf. United States v. Kamer, 781 F.2d 1380, 1386 (9th Cir. 1986) (discussing sentence that breaches plea agreement made pursuant to Fed. R. Crim. P. 11(e) (1) (A) and (C)).

AFFIRMED.