United States Court of Appeals

Fifth Circuit



## FILED

July 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-40727

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERMINIO VALDOBINO-PINEDA,

also known as Francisco Hurtado-Villa,

Defendant-Appellant.

* * * * * * * * * *

Consolidated with

No. 04-40729

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO PINEDA-PINEDA,

also known as Ariel Penaloza-Pineda,

Defendant-Appellant.* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 Appeal from the United States District Court

for the Southern District of Texas

(7:03-CR-106-5)

(7:03-CR-106-4)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

In this consolidated appeal, Herminio Valdobino-Pineda and

Eduardo Pineda-Pineda challenge their convictions and 120-month

sentences following their guilty pleas to conspiracy to possess

with intent to distribute more than 1,000 kilograms of marijuana.

Valdobino and Pineda were arrested by state authorities on 18 March

2002, after they loaded marijuana into a van . They were indicted

on federal charges on 12 February 2003.

Before trial, Valdobino and Pineda moved to dismiss the

indictments on Fifth and Sixth Amendment speedy trial grounds and

pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3163. The

district court heard evidence on these motions, but deferred

ruling. Because Valdobino and Pineda pleaded guilty during trial,

the district court never ruled on the pre-trial motions to dismiss.

On appeal, defendants contend: their rights under the Speedy Trial

Act attached in March 2002 when they were taken into state custody;

these righ ts were violated by the delay in prosecution until3

February 2003; and the district court erred by deferring its ruling

on the pretrial motions to dismiss on speedy trial grounds.

As for their guilty plea s, defendants contend: their

unconditional guilty pleas were invalid because they intended to

preserve the right to appeal the denial of their motions to dismiss

the indictment as a violation of their statutory rights to a speedy

trial; the guilty pleas were not knowing and voluntary because

defendants were not aware of the consequences of the pleas; and the

district court erred in denying, without an evidentiary hearing,

defendants’ motions to withdraw their guilty p leas and enter

conditional ones. Defendants also contest their 120-month

sentences.

We review a variance from F ED

. R. C RIM

. P. 11 (entering a plea)

for harmless error. F E D

. R. C RIM

. P. 11(h). Valdobino and Pineda

entered knowing and voluntary unconditional guilty pleas, waiving

all nonjurisdictional defects, including Speedy Trial Act

violations, that may have occurred during pre-plea proceedings.

See F ED

. R. C RIM

. P. 11(a)(2); U nited States v. Abreo

, 30 F.3d 29,

31-32 (5th Cir.), cert. denied

, 513 U.S. 1064 (1994); United States

v. Bell , 966 F.2d 914, 915 (5th Cir. 1992). Pineda’s and

Valdobino’s sworn responses to the district cour t’s inquiries at

the plea hearing establish that there was no misconception about

the uncondi tional nature of the pleas. Abreo

, 30 F.3d at 31

( “testimony in open court carries a strong presumption of verity”)

.4

Even if the guilty pleas had preserved the right to appeal the

speed y-trial statutory issue, the district court did not err in

deferring ruling on that issue. F E D

. R. C RIM

. P. 12(d) states a

court “must decide every pretri al motion before trial u nless it

finds good cause to defer a ruling ”

. (emphasis added). A state

arrest, even an arrest that is based upon the same operative facts

as a sub sequent federal accusation, does not trigger the

protect ions afforded by the Federal Speedy Trial Act. U nited

States v. Gomez

, 776 F.2d 542, 549-50 (5th Cir. 1985). Defendants’

pretrial motions to dismiss on speedy trial grounds raised not only

the Speedy Trial Act, but also Fifth and Sixth Amendment issues.

The district court had good cause for deferring ruling on the

motions to dismiss, as a Fifth Amendment determination of denial of

speedy trial r ights requires evidence of prejudice unavailable

until trial. S ee United States v. Crouch

, 84 F.3d 1497, 1516 (5th

Cir. 1996), cert. denied , 519 U.S. 1076 (1997).

Defendants contend their guilty pleas are invalid because the

district court did not advise them of the elements of the offense:

they were not told that the Government had to prove they conspired

to possess with intent to distribute 1,000 kilograms of marijuana;

and the drug quantity cited by the Government at the plea hearing

did not implicate the mandatory minimum sentencing provision of 21

U.S.C. § 841. Defendants do not contend they did not understand

the nature of the offense.5

At rearraignment, the Government erroneously reported the drug

quantity as 1,375 pounds, instead of kilo grams ; however, the

indictment read aloud, and the district court’s admonitions during

the plea colloquy, put Valdobino and Pineda on notice they were

subject to the 120-month statu tory mandatory minimum sentence.

Defense counsel, as officers of the court, had a duty to alert the

district court to any variance from the procedure required by F ED

.

R. C RIM

. P. 11; defendants cannot benefit on appeal from what was an

obvious misstatement. S ee United States v. Cuevas-Andrade

, 232

F.3d 440, 445 n.3 (5th Cir. 2000), c ert. denied

, 532 U.S. 1014

(2001). Any error was harmless. S ee F ED

. R. C RIM

. P.11(h); 21

U.S.C. § 841(b)(1)(A)(vii).

The denial of a motion to withdraw a guilt y plea and the

decision not to hold an evidentiary hearing are reviewed for abuse

of discretion. E .g.

, United States v. Powell

, 354 F.3d 3 62, 370

(5th Cir. 2003). Valdobino and Pineda have not shown the district

court abused its discretion by denying, without conducting an

evidentiary hearing, their motions to withdraw their pleas o r to

convert the pleas to conditional pleas, reserving the right to

appeal the rulings on the speedy trial motions. See id. at 370.

The district court did not e rr by sentencing Valdobino and

Pineda to the 120-month statutory mandatory minimum sentence. A

“term of imprisonment which may not be less than 10 years or more

than life” shall be imposed for an offense involving 1,0006

kilograms or more of a substance containing marijuana. 21 U.S.C.

§ 841(b)(1)(A)(vii).

Pineda contends, for the first tim e on appeal, that the

Government did not comply with the terms of the plea agreement

because it did not recommend a sentence at the low end of the

guideline range. We review issues not raised in district court

only for plain error. U nited States v. Clayton

, 172 F.3d 347, 351

(5th Cir. 1999). Plain error is error that is clear or obvious and

affects substantial rights; if d efendants make the required

s howing, the court has discretion to correct the error , and,

generally, will only do so if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. I d.

Because 21 U.S.C. § 841(b)(1)(A)(vii) required a minimum 120-month

sentence, Valdobino’s guideline range became 120 to 135 months, and

Pineda’s guideline range became 120 to 121 months. S ee U.S.S.G. §

5G1.1(c)(2). The Government did not request a sentence above the

120-month statutory mandatory minimum, which was the low end of the

applicable guideline r anges. P ineda has not shown plain error.

See United States v. Calverley

, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc), cert. denied , 513 U.S. 1196 (1995).

Defendants challenge their sentences as unconstitutional and

in violation of United States v. Booker

, 125 S. Ct. 738 (2005), and

the Sixth Amendment right to a trial by jury. As noted, the 120-

month sentences were required by 21 U.S.C. § 841(b)(1)(A)(vii); the

sentences were not imposed under the Sentencing Guidelines as the7

result of facts that had not been admitted or proved to a jury

beyond a reasonable doubt. Booker , 125 S. Ct. at 756. Valdobino

and Pineda have not identified a Sixth Amendment violation. S ee

id.

.

AFFIRMED