UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5062

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GELACIO ARROYO-BENITEZ, a/k/a Roberto BenitezSoto,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (CR-04-62)

Argued: May 21, 2007 Decided: July 30, 2007

Before WILLIAMS, Chief Judge, and MOTZ and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Clinton Louis Rudisill, RUDISILL & ASSOCIATES, P.A.,

Marshall, North Carolina, for Appellant. Amy Elizabeth Ray,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Gretchen C. F. Shappert, United States Attorney, Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gelacio Arroyo-Benitez appeals his sentence of 87 months,

imposed after he pleaded guilty to conspiracy to possess with

intent to distribute powder cocaine, in violation of 21 U.S.C.

§§ 841, 846 (2000). He contends that the district court erred in

accepting his plea after the magistrate judge amended the

indictment in court so that the drug quantity in the indictment

matched that in the plea agreement. Because Arroyo-Benitez cannot

show plain error, we affirm.

I.

A federal grand jury charged Arroyo-Benitez with conspiracy to

possess with intent to distribute 50 grams or more of powder

cocaine. After initially pleading not guilty, he changed his mind

and entered into a plea agreement with the Government on April 7,

2005 (“Agreement I”). The parties stipulated in Agreement I that

the Government could attribute to Arroyo-Benitez at least 3.5

kilograms but less than 5 kilograms of cocaine powder and at least

150 grams but less than 500 grams of crack cocaine. Agreement I

also indicated that Arroyo-Benitez faced a sentence of not less

than ten years’ and no more than life imprisonment.

Arroyo-Benitez consented to a magistrate judge conducting the

Rule 11 hearing. At the hearing, the magistrate judge noticed that

the minimum drug quantity charged in the indictment, 50 grams, did
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not constitute the minimum drug quantity necessary to support the

ten-years-to-life sentence set forth in Agreement I. The

magistrate judge adjourned the proceedings to allow the Government

to cure the indictment.

The court reconvened approximately three months later. During

the interim period, the parties signed an amended plea agreement

(“Agreement II”), which deleted the reference to crack cocaine and

listed the applicable statutory sentence as not less than five

years’ and no more than forty years’ imprisonment. The Government

did not, however, file a superseding indictment.

At a hearing on July 18, 2005, the Government moved to

withdraw Agreement I and proceed with Agreement II; the magistrate

judge granted the motion. The magistrate judge also noted,

however, that the indictment still stated that the offense involved

50 grams or more of powder cocaine, but that “it would be 500 grams

or more of powder that would give rise to a sentence of 5 to 40

[years],” as set forth in Agreement II. According to the

magistrate judge, “if you just take the language of the bill of

indictment itself, the maximum penalty for this offense based on

that language would not be as indicated in the plea agreement. It

would be less.”

To resolve the discrepancy between the indictment and

Agreement II, the magistrate judge changed the indictment to

reflect 500 rather than 50 grams of cocaine powder. The
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prosecutor, defense counsel, and Arroyo-Benitez all agreed to this

revision and initialed the amended indictment indicating their

agreement. The court then explained to Arroyo-Benitez his grand

jury rights, and Arroyo-Benitez agreed to waive his right to have

the grand jury amend the indictment. After further colloquy with

Arroyo-Benitez, the magistrate judge accepted his guilty plea.

At a sentencing hearing on October 11, 2005, the parties

stipulated to the existence of an independent factual basis to

support the guilty plea, and the district court found that a

factual basis existed to support the plea. Arroyo-Benitez then

indicated that he had “objections” to the Presentence Report (PSR),

and that it included “[a l]ot of mistakes.” He stated, “Well,

since we started . . . there was a mistake . . . . They charged me

with . . . in the indictment 50 grams. Then they make me sign 500,

you know, when the offense involved 250 grams.” The court noted

that the indictment had been amended to reflect 500 grams of

cocaine powder, to which Arroyo-Benitez responded, “the offense

involved 250 grams . . . . I thought that the 500 grams wouldn’t

change the amount on here, you know . . . .” He further maintained

that he signed something “that’s not true,” and that while he was

involved in a conspiracy, the 3.5 to 5 kilograms of cocaine

indicated in the plea agreement was “too much.”

In response, the court asked defense counsel if she wished to

present any evidence regarding the drug quantity. The lawyer
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stated that she did not have any evidence to offer, and ArroyoBenitez declined to testify, stating, “Well, sir, I’m -- I’m tired

of -- I want to go through with this thing, you know . . . . I

just want something, you know, fair.” The district court then

accepted the plea agreement and adopted the PSR. The PSR

calculated a sentencing range of 87 to 108 months. After rejecting

Arroyo-Benitez’s request for a variance, the district court

sentenced him to 87 months’ imprisonment.

Arroyo-Benitez timely appealed. In a brief filed pursuant to

Anders v. California, 386 U.S. 738 (1967), Arroyo-Benitez’s counsel

argues that the in-court amendment of the indictment violated

Arroyo-Benitez’s Fifth Amendment right to be charged by a grand

jury. Whether a district court violated a defendant’s Fifth

Amendment grand jury right is a question of law we review de novo.

See United States v. Bolden, 325 F.3d 471, 493 (2003).

II.

The Fifth Amendment provides that “[n]o person shall be held

to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury.” U.S. Const. amend. V.

As a result of this requirement, “only the grand jury may broaden

or alter the charges in [an] indictment.” United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999). To amend an indictment

requires “resubmission to the grand jury, unless the change is
1

We note that because it appears that Arroyo-Benitez waived

his grand jury rights at the time the magistrate judge amended the

indictment, the amended indictment could possibly be treated

instead as an information. But because neither party has argued on

appeal that the charging document was an information, we treat it,

as they have, as an indictment.

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merely a matter of form.” Russell v. United States, 369 U.S. 749,

770 (1962). Arroyo-Benitez claims that the district court violated

his Fifth Amendment right by accepting his guilty plea after the

magistrate judge amended the indictment in court, rather than

requiring the Government to amend the indictment by grand jury.

Arroyo-Benitez did not object at the Rule 11 hearing when the

magistrate judge amended the indictment and asked the lawyers and

Arroyo-Benitez to initial the change. Indeed, Arroyo-Benitez

explicitly agreed to waive his right “to have the grand jury make

[the] change.” The Supreme Court has instructed that “the grand

jury right can be waived.” United States v. Cotton, 535 U.S. 625,

630 (2002) (citing Fed. R. Crim. Proc. 7(b); Smith v. United

States, 360 U.S. 1, 6 (1959)).1 We need not here decide whether

Arroyo-Benitez properly waived his right to have a grand jury amend

the indictment, however, because Arroyo-Benitez at a minimum

forfeited his Fifth Amendment claim by failing to object to the

amended indictment, and so must show plain error, which he fails to

do. See United States v. Olano, 507 U.S. 725, 733 (1993) (noting

the difference between waiver and forfeiture, and explaining that
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forfeiture “is the failure to make the timely assertion of a

right”).

In Cotton, the Supreme Court considered a forfeited claim that

an indictment failed to allege threshold drug quantities, and held

that “defects in an indictment do not deprive a court of its power

to adjudicate a case.” 535 U.S. at 630. Instead, the Court

concluded that when a defendant fails to object to a defective

indictment at trial, the plain error standard of Federal Rule of

Criminal Procedure 52(b) applies. Id at 631. “Under th[e plain

error] test, before an appellate court can correct an error not

raised at trial, there must be (1) error, (2) that is plain, and

(3) that affects substantial rights.” Id. (internal quotation

marks and alterations omitted). “If all three conditions are met,

an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Id. at 631-32 (internal quotation marks and alterations omitted).

The Cotton Court held that the Government’s error in failing

to allege a drug quantity in the indictment, while plain, “did not

seriously affect the fairness, integrity, or public reputation of

judicial proceedings” because the evidence that the conspiracy at

issue involved at least 50 grams of cocaine base -- the minimum

drug quantity required to support the enhanced sentence imposed by

the district court -- “was overwhelming and essentially
2

Arroyo-Benitez did claim at sentencing that the offense

involved only 250 grams of cocaine powder, even though he had

already pleaded guilty based on an agreement stipulating that the

offense involved between 3.5 and 5 kilograms of cocaine powder.

But when the district court gave him an opportunity to present

evidence about the drug quantity, his attorney stated she had no

evidence to offer and Arroyo-Benitez himself declined to testify.

His sentencing claims thus do not undermine the district court’s

finding that there was a factual basis to support the plea

agreement.

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uncontroverted.” Id. at 632-33 (internal quotation marks omitted).

According to the Court, “[s]urely the grand jury, having found that

the conspiracy existed, would have also found that the conspiracy

involved at least 50 grams of cocaine base.” Id. at 633.

Here, too, “overwhelming and essentially uncontroverted”

evidence exists that Arroyo-Benitez participated in the conspiracy

for which he was sentenced -- one involving at least 500 grams of

cocaine powder. Agreement II contained a stipulation that “[t]he

amount of cocaine powder that was known to or reasonably

foreseeable by the defendant was at least 3.5 kilograms but less

than 5 kilograms.” Only after the prosecutor and defense counsel

stipulated at sentencing “to the existence of an independent basis

in fact to support the plea,” did the district court accept

Agreement II as “a stipulation of the parties in terms of the

foreseeable amount of cocaine.”2

Hence, we have no trouble concluding, like the Supreme Court

in Cotton, that “the grand jury, having found that the conspiracy

existed, would have also found that the conspiracy involved at
3

Arroyo-Benitez has also filed a pro se supplemental brief

raising two additional claims. First, he contends that his counsel

was ineffective for failing to alert the district court that

Arroyo-Benitez did not understand English well, for “coerc[ing him]

to sign a plea agreement he did not fully understand,” and for

failing to argue that the Government had agreed to deport him to

Mexico. An ineffective assistance of counsel claim is generally

not cognizable on direct appeal, however, but instead should be

asserted in a post-conviction motion under 28 U.S.C. § 2255 (2006).

See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

We have recognized an exception to this general rule when “it

conclusively appears from the record that defense counsel did not

provide effective representation.” Id. (internal quotation marks

omitted). But the record here does not conclusively establish that

counsel was ineffective. Therefore, we conclude that ArroyoBenitez’s claim is not cognizable on direct appeal.

Arroyo-Benitez next argues that the Government promised to

deport him immediately to Mexico upon his guilty plea, and that the

Government breached the plea agreement when it failed to argue for

deportation at sentencing. “It is settled that a defendant

alleging the Government’s breach of a plea agreement bears the

burden of establishing that breach by a preponderance of the

evidence.” United States v. Snow, 234 F.3d 187, 189 (4th Cir.

2000). Arroyo-Benitez has offered no evidence that the Government

offered to immediately deport him. Agreement II, which ArroyoBenitez signed, contains no promise of deportation, but it does

contain an integration clause stating, “There are no agreements,

representations, or understandings between the parties in this

case, other than those explicitly set forth in this Plea Agreement

and none will be entered into unless executed in writing and signed

by all parties.” Accordingly, we reject Arroyo-Benitez’s argument

that the Government breached the plea agreement by failing to

deport him immediately after his guilty plea.

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least [500] grams of cocaine [powder],” 535 U.S. at 633.

Accordingly, if the district court committed any error here by

allowing the in-court amendment of the indictment, it did not

affect the “fairness and integrity of the criminal justice system,”

id. at 634, as is required for Arroyo-Benitez to show plain error.3
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III.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.