FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 31, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16120

Non-Argument Calendar

________________________

D. C. Docket No. 07-20487-CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANGEL BALBUENA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 31, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After pleading guilty, Angel Balbuena appeals his convictions and 170-
month sentences for attempting to possess cocaine with intent to distribute,

possession of cocaine with intent to distribute, and possession of marijuana with

intent to distribute. After review, we affirm.

I. BACKGROUND

A. Plea Hearing

Balbuena was indicted for: (1) attempting to possess 13 kilograms of cocaine

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846

(Count 1); (2) possession of more than 500 grams of cocaine with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 2);

and (3) possession of marijuana with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count 3).

In June 2007, Balbuena was released on bond. After Balbuena failed to

appear for a plea hearing in October 2007, the district court issued a bench warrant

for his arrest. In March 2008, Balbuena was located at the Miami-Dade County

Jail and released to the U.S. Marshals Service.

At the rescheduled plea hearing, Balbuena stated that he had discussed the

case with his counsel and was satisfied with counsel’s representation. The district

court informed Balbuena of the statutory maximum imprisonment term on each

count, but did not advise him of any mandatory minimum penalties. The district

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court also advised Balbuena that any imprisonment would be followed by “terms

of supervised release” and that each count included a special assessment. Balbuena

said that he understood the charges against him and the rights that he was giving up

by pleading guilty and that no one was forcing him to pled guilty.

The government proffered that the evidence at trial would show that a Drug

Enforcement Administration (“DEA”) agent, Jalisa Monzon, and a separate

confidential informant (“CI”) placed several recorded phone calls to Balbuena. In

these calls, Balbuena told the CI that he had gathered enough money to purchase

over 10 kilograms of cocaine and arranged a transaction. Balbuena met the CI and

undercover DEA Agent Monzon in a parking lot. Balbuena told the CI that he had

brought $100,000 with him and that the rest of the money was at home. Balbuena

asked to see the cocaine. The DEA agent showed Balbuena a large duffel bag that

contained 13 brick-shaped objects wrapped in duct tape that were intended to

simulate kilograms of cocaine. Balbuena was then arrested.

At the plea hearing, Balbuena’s counsel disagreed with the proffered drug

quantity. Balbuena’s counsel stated that the agents told Balbuena that they had 10

kilograms of cocaine to sell, but that Balbuena negotiated to purchase only three

kilograms. The government responded that a factual proffer of less than five

kilograms would not comply with the indictment. Balbuena’s counsel conferred

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with Balbuena and the interpreter and then said that Balbuena was prepared to

proceed with his guilty plea. Balbuena agreed with the factual proffer and pled

guilty to Counts 1, 2, and 3. The district court accepted Balbuena’s plea.

B. Presentence Investigation Report

The Presentence Investigation Report (“PSI”) reproduced a written

statement from Balbuena. In the statement, Balbuena said that a man named

Carlos Luna was going to purchase 10 of the 13 kilograms of cocaine and that

Balbuena was going to purchase the other three kilograms of cocaine. Balbuena

stated that he told the CI and the DEA agent at the time of the transaction that Luna

had the rest of the money for the purchase at Balbuena’s house.

The PSI assigned a base offense level of 32 based on a drug quantity of

13.785 kilograms of cocaine and 776.9 grams of marijuana, pursuant to U.S.S.G. §

2D1.1(c)(4). The PSI recommended a two-level increase for obstruction of

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justice, pursuant to U.S.S.G. § 3C1.1, because Balbuena failed to appear for the

initial plea hearing. The PSI declined to recommend a reduction for acceptance of

responsibility, in part because of Balbuena’s conduct resulting in the obstructionThe drug quantity consisted of (1) the 13 kilograms of cocaine that Balbuena intended to 1

purchase from the CI and Agent Monzon at the time of his arrest, (2) 23.1 grams of cocaine that

were found in a search of Balbuena’s vehicle, and (3) 762.5 grams of cocaine and 776.9 grams of

marijuana that were found in a search of Balbuena’s residence. The PSI determined that this

drug quantity was equivalent to 2,758 kilograms of marijuana under the guidelines. 

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of-justice enhancement. Based on Balbuena’s total offense level of 34 and

criminal history category of II, the PSI calculated an advisory guidelines range of

168 to 210 months’ imprisonment. The PSI outlined the following statutory

penalties: (1) for Count 1, a minimum imprisonment term of 10 years and a

maximum imprisonment term of life under 21 U.S.C. § 841(b)(1)(A); (2) for Count

2, a minimum imprisonment term of five years and a maximum imprisonment term

of 40 years under 21 U.S.C. § 841(b)(1)(B); and (3) for Count 3, no minimum

imprisonment term and a maximum imprisonment term of 5 years under 21 U.S.C.

§ 841(b)(1)(D). The PSI also outlined the mandatory supervised release terms for

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each count. Balbuena objected to the PSI’s drug quantity and denial of an

acceptance-of-responsibility reduction.

C. Motion to Withdraw Guilty Plea

After the PSI was issued, the district court allowed Balbuena’s counsel to

Although the PSI correctly referred to the penalty provisions for all three counts, the 2

government at sentencing pointed out that the indictment correctly cited 21 U.S.C. § 841(b)(1)

but contained two typographical errors as to the penalty subsections in that: (1) Count 2 referred

to § 841(b)(1)(A) instead of § 841(b)(1)(B), and (2) Count 3 referred to § 841(b)(1)(C) instead of

§ 841(b)(1)(D). The statutory minimum and maximum imprisonment terms for Counts 2 in

§ 841(b)(1)(B), as accurately reported in the PSI, were less than those in § 841(b)(1)(A) cited in

the indictment. The same is true for Count 3 in that the statutory minimum and maximum

imprisonment terms in § 841(b)(1)(D), as accurately reported in the PSI, were less than those in

§ 841(b)(1)(C) cited in the indictment. Thus, the district court and the parties properly

proceeded under those lower statutory minimum and maximum terms for Counts 2 and 3. As to

Count 1, the indictment and the PSI correctly cited the penalty provision in 21 U.S.C.

§ 841(b)(1)(A), which carried the highest statutory minimum and maximum term of

imprisonment of the three counts of conviction.

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withdraw and appointed Balbuena new counsel. Balbuena, through his new

counsel, filed a motion to withdraw his guilty plea. Balbuena asserted, inter alia,

that he did not receive close assistance of counsel because the recorded

conversations between Balbuena and the CI were not translated from Spanish to

English or transcribed and his prior counsel was not fluent in Spanish. Balbuena

argued that his prior counsel could have provided better assistance if the recordings

had been translated because Balbuena appeared to say that he only had money for

three kilograms of cocaine in one of the last conversations. Balbuena also argued

that his guilty plea to Count 1 was not knowing and voluntary because he intended

to purchase only three kilograms of cocaine.

At a hearing on Balbuena’s motion to withdraw his guilty plea, Balbuena’s

counsel argued that Balbuena brought enough money to the meeting with the CI

and DEA Agent Monzon to purchase only three kilograms of cocaine. When the

district court questioned Balbuena about his agreement with the government’s

factual proffer at the plea colloquy, Balbuena’s counsel responded, “Judge, that is

what it is.” With regard to the recorded conversations between Balbuena and the

CI, Balbuena’s counsel noted that the Spanish words for “three” and “thirteen”

sound similar. The government explained that the recorded conversations were not

transcribed into English because the “case was tracking towards a guilty plea.”

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The district court orally denied Balbuena’s motion to withdraw his guilty

plea because Balbuena (1) was in the best position to advise his counsel about the

content of the recorded phone conversations, (2) had time to confer with counsel

and the interpreter during the plea hearing whenever he had questions, and (3) said

that he agreed with the factual proffer, that he was pleading guilty because it was in

his best interest, and that he was satisfied with counsel’s representation.

D. Sentencing

At sentencing, the government presented testimony from DEA Agent

Monzon, who was the main agent on Balbuena’s case and was the undercover

agent present at the transaction. Monzon testified that she is fluent in Spanish and

that she listened to each of the phone calls between Balbuena and the CI, which

were conducted in Spanish. Monzon also testified that she transcribed the

recordings herself but that there was no official transcription of them. Monzon

testified that the drug transaction was negotiated over the course of several phone

conversations and that the drug quantity discussed ranged from 10 to 15 kilograms

of cocaine. Monzon further testified that, during a recorded conversation with the

CI on the date of his arrest, Balbuena said, “I have the money for 13,” and that he

was referring to the kilograms of cocaine he had arranged to purchase. Monzon

conceded that Balbuena did not speak “proper Castillian Spanish” but testified that

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she was certain that Balbuena had asked for 13 kilograms of cocaine. Monzon

acknowledged that Balbuena said during one conversation that he had money only

for three kilograms but testified that the CI, at the DEA’s direction, told Balbuena

that he would not sell him only three kilograms.

Monzon also testified that the arrangement was for Balbuena to bring all of

the money for the transaction to the meeting place. When Balbuena arrived, he

told Monzon and the CI that he had brought $100,000 with him and that they

would follow him to Balbuena’s residence to get the rest of the money for the

transaction from Carlos Luna. Agents later counted the money that Balbuena

brought with him and discovered that it was only approximately $54,000.

Balbuena testified that, on the day of the arranged transaction, he told the CI

that he had the money for three kilograms and that he either would buy three

kilograms or he would leave. Balbuena denied that he intended to purchase

cocaine for Luna, but conceded that he had said so during debriefing. Balbuena

testified that he had lied in an attempt to lessen his sentence.

The district court found that Balbuena’s version of events was not credible.

The district court found that the transcripts indicated that Balbuena requested

between 10 to 15 kilograms of cocaine at various times. The district court noted

that the CI told Balbuena consistently that he would not sell a lesser amount, but

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Balbuena continued with the purchase nevertheless. Based on the recorded

telephone conversations and Agent Monzon’s testimony, the district court found

that Balbuena intended to take his three kilograms of cocaine and then go

elsewhere to get additional money to purchase the other 10 kilograms. Thus, the

district court found that the government met its burden of proving the drug

quantity by a preponderance of the evidence.

With regard to the guidelines calculations, Balbuena argued that it was

impermissible double-counting to rely on his failure to appear for the initial plea

hearing in applying the obstruction-of-justice enhancement and denying the

acceptance-of-responsibility reduction. The district court overruled his objection

and adopted the advisory guidelines range of 168 to 210 months’ imprisonment.

The district court sentenced Balbuena to 170 months’ imprisonment each on

Counts 1 and 2 and 60 months’ imprisonment on Count 3, all to run concurrently,

and five years of supervised release. Balbuena appealed.

II. DISCUSSION

A. Withdrawal of Guilty Plea

Balbuena argues that the district court erred in denying his motion to

withdraw his guilty plea for two reasons. First, Balbuena argues that the district

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This Court reviews the denial of a motion to withdraw a guilty plea for abuse of 3

discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).

9
court failed to advise him of the statutory mandatory minimum penalties that he

faced at the plea hearing. Because Balbuena did not raise any objections in the

district court regarding the adequacy of the plea colloquy, we review this issue

only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005).

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Before accepting a guilty plea, “the court must inform the defendant of, and

determine that the defendants understands . . . any mandatory minimum penalty.”

Fed. R. Crim. P. 11(b)(1)(I). The three core principles underlying Rule 11’s

requirements are that: “(1) the guilty plea must be free from coercion; (2) the

defendant must understand the nature of the charges; and (3) the defendant must

know and understand the consequences of his guilty plea.” United States v. Siegel,

102 F.3d 477, 481 (11th Cir. 1996).

“[A] defendant who seeks reversal of his conviction after a guilty plea, on

the ground that the district court committed plain error under Rule 11, must show a

reasonable probability that, but for the error, he would not have entered the plea.”

United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340

(2004). When a defendant is not informed of a sentencing consequence during the

Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects 4

substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Rodriguez, 398 F.3d at 1298.

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plea colloquy, but is informed by the PSI and does not object during the sentencing

hearing, this Court may infer from the defendant’s own conduct that his substantial

rights have not been violated. See United States v. Bejarano, 249 F.3d 1304, 1306-

07 (11th Cir. 2001); United States v. Carey, 884 F.2d 547, 548-49 (11th Cir. 1989).

Although the district court did not advise Balbuena of the mandatory

minimum penalties at the plea hearing, the PSI outlined the mandatory minimum

imprisonment and supervised release terms on each count and the potential fines

Balbuena faced. Balbuena received the PSI before filing his motion to withdraw

his guilty plea, but did not reference the plea-colloquy omission in his motion. In

addition, at sentencing, Balbuena’s counsel stated, “I understand that the Court’s

hands are tied as far as the minimum-mandatory sentence of ten years because of

the number of kilos that he pled guilty to, which is over five kilos.” In the district

court, Balbuena did not object or move to withdraw his guilty plea based on the

mandatory minimum penalties at this time, either. And Balbuena’s sentence of 170

months’ imprisonment was within the advisory guidelines range of 168 to 210

months’ imprisonment and was not derived from a mandatory minimum. Thus,

Balbuena has failed to show plain error.

Next, Balbuena argues that the district court erred in denying his motion to

withdraw his guilty plea because his original counsel did not know the contents of

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the recorded phone conversations between Balbuena and the CI. After the district

court has accepted a plea and before sentencing, a defendant may withdraw a guilty

plea if “the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When deciding whether a defendant

has shown a fair and just reason for withdrawal, the district court evaluates the

totality of the circumstances, including: “(1) whether close assistance of counsel

was available; (2) whether the plea was knowing and voluntary; (3) whether

judicial resources would be conserved; and (4) whether the government would be

prejudiced if the defendant were allowed to withdraw his plea.” United States v.

Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988) (citations omitted).

We see no error in this regard either. As to whether Balbuena received close

assistance of counsel, Balbuena consulted with his counsel through an interpreter at

the plea hearing after Balbuena questioned the drug quantity in the government’s

factual proffer. As a party to the recorded conversations, Balbuena himself could

have advised his counsel regarding the substance of the conversations with the CI

and told his counsel that he would not admit that he agreed to purchase 13

kilograms of cocaine. Instead, after consulting with counsel, Balbuena stated that

he accepted the government’s factual proffer, which expressly referenced 13

kilograms of cocaine, and pled guilty. Balbuena also told the district court that he

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was satisfied with his lawyer’s representation. The district court was permitted to

rely on Balbuena’s representations at the plea hearing. See United States v.

Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption that

the statements made during the [plea] colloquy are true.”).

As to whether Balbuena’s plea was knowing and voluntary, Balbuena stated

that he understood the charges against him and the rights he was waiving, that he

was not being pressured to plead guilty, and that he accepted the government’s

factual basis. Because these first two factors weigh strongly in favor of the district

court’s decision not to allow Balbuena to withdraw his plea, we conclude that the

district court did not err and need not consider the other two factors. See United

States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).

For these reasons, we affirm the district court’s denial of Balbuena’s motion

to withdraw his guilty plea.

B. Impermissible Double-Counting

Next, Balbuena argues that it was impermissible double-counting for the

district court both to increase his offense level for obstruction of justice and to

deny him an acceptance-of-responsibility reduction to that offense level based on

his failure to appear at the initial plea hearing.

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This Court reviews claims of double counting de novo. United States v. Matos- 5

Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999). 

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“Impermissible double counting occurs only when one part of the

Guidelines is applied to increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by application of another part of the

Guidelines.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir.

1999) (quotation marks omitted). It is presumed that the Sentencing Commission

intended to apply separate guideline sections cumulatively unless there are specific

directions otherwise. United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.

1995).

A two-level obstruction-of-justice increase applies where “the defendant

willfully obstructed or impeded . . . the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of conviction” and

the obstructive conduct related to the defendant’s offense of conviction.

U.S.S.G. § 3C1.1. The guidelines list “willfully failing to appear, as ordered, for a

judicial proceeding” as an example of conduct to which the obstruction-of-justice

enhancement applies. Id. § 3C1.1 cmt. n.4(e). In considering whether an

acceptance-of-responsibility reduction is appropriate, “[e]ntry of a plea of guilty

prior to the commencement of trial combined with truthfully admitting the conduct

comprising the offense of conviction . . . will constitute significant evidence of

acceptance of responsibility.” Id. § 3E1.1 cmt. n.3 (emphasis added). Conduct

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resulting in an obstruction-of-justice enhancement “ordinarily indicates that the

defendant has not accepted responsibility for his criminal conduct.” Id. § 3E1.1

cmt. n.4.

We reject Balbuena’s double-counting claim. The guidelines explicitly

contemplate that conduct resulting in an obstruction-of-justice enhancement may

warrant a denial of an acceptance-of-responsibility reduction. U.S.S.G. § 3E1.1

cmt. n.4. Thus, it was permissible for the district court to consider Balbuena’s

failure to appear for his plea hearing in both guidelines calculations. Furthermore,

the district court also properly determined that Balbuena’s challenge to the drug

quantity after his guilty plea and admission to the government’s factual proffer was

incompatible with a true acceptance of responsibility. Thus, we see no error in the

district court applying the two guidelines sections cumulatively.

In conclusion, we affirm Balbuena’s convictions and sentences.

AFFIRMED.

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