United States v. Samuel Acosta

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2802
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Juan Orozco-Osbaldo, aka Juan *
Carlos Palomera-Orozco, *
*
Appellant. *
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Submitted: March 11, 2010
Filed: August 11, 2010
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
On August 20, 2008, the government charged Juan Orozco-Osbaldo with
conspiracy to possess and distribute at least 50 grams of methamphetamine, in
violation of 21 U.S.C. § 846, four counts of distribution of methamphetamine, in
violation of 21 U.S.C. § 841, and forfeiture pursuant to 21 U.S.C. § 853. On April 19,
2009, Orozco-Osbaldo filed a motion to dismiss for violation of the Speedy Trial Act1 .
118 U.S.C. § 3161(c)(1).

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The district court 2 denied this motion. He then pleaded guilty to the conspiracy count,
three distribution counts, and the forfeiture count 3. The court then imposed a 235-
month sentence. On appeal, Orozco-Osbaldo contends that the district court abused
its discretion in denying his motion to dismiss for violation of the Speedy Trial Act.
Orozco-Osbaldo also maintains that the court lacked a sufficient factual basis to
accept his guilty plea as to the conspiracy count. Finally, Orozco-Osbaldo argues that
the district court improperly considered and relied upon unrecorded proceedings to
support the acceptance of his guilty pleas. We find no error and affirm.
I. Background
On August 20, 2008, the government filed an indictment charging
Orozco-Osbaldo with conspiracy to possess and distribute at least 50 grams of
methamphetamine, in violation of § 846, four counts of distribution of
methamphetamine, in violation of § 841, and forfeiture pursuant § 853. On September
9, 2008, Orozco-Osbaldo filed a motion to continue, which the district court granted
on September 19, 2008, and trial was continued until November 17, 2008. The court
excluded the time from the date of the order until the new trial date from the speedy
trial calculation. On October 31, 2008, the government filed a motion seeking to join
Orozco-Osbaldo with five other defendants, which Orozco-Osbaldo did not resist. On
February 6, 2009, the court granted the motion for joinder in part and set trial for
March 16, 2009 (Victor Briones-Hernandez and Juan Correa-Gutierrez were joined
with Orozco-Osbaldo for trial). On February 26, 2009, Briones-Hernandez filed a
motion to continue the March trial date. The court granted this motion on March 4,
2009. At the same time, the court set the new trial date for April 20, 2009. The court
noted that the order affected all three cases and excluded the time between March 16,
2009, and April 20, 2009, from the speedy trial calculation for each defendant. On
2The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
3The government dropped the fourth distribution count.
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March 13, 2009, the government filed a motion to take a deposition. The court denied
that motion on March 24, 2009. The court also excluded this time from the speedy
trial calculation.
Orozco-Osbaldo filed his motion to dismiss for violation of the Speedy Trial
Act on April 19, 2009. The court denied this motion the next day. Orozco-Osbaldo
proceeded to jury trial on April 21, 2009. After an off the record discussion between
the district court, Orozco-Osbaldo and the attorneys for the parties, the court accepted
the guilty plea and sentenced Orozco-Osbaldo to 235 months' imprisonment.
II. Discussion
A. Speedy Trial Act
On appeal, Orozco-Osbaldo maintains the court erred in denying his motion
because it should not have excluded the period during which the court considered the
motion for joinder from the speedy trial calculation. Orozco-Osbaldo contends that the
district court took too long in considering this motion. Orozco-Osbaldo argues that
once these days are included, the Speedy Trial Act is violated.
"In the context of Speedy Trial Act rulings, we review a district court's legal
conclusions de novo, its factual findings for clear error, and its ultimate determination
for an abuse of discretion." United States v. Lucas, 499 F.3d 769, 782 (8th Cir. 2007).
We are unpersuaded by Orozco-Osbaldo's arguments. The Speedy Trial Act
provides that a trial shall "commence within seventy days from the filing date (and
making public) of the . . . indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such charge is pending, whichever date
last occurs." 18 U.S.C. § 3161(c)(1). However, the Speedy Trial Act describes
"periods of delay" that "shall be excluded . . . in computing the time within which the
trial of any such offense must commence . . . ." Id. § 3161(h).
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In this case, the district court properly excluded the period during which it
considered the motion for joinder as a "period of delay" pursuant to § 3161(h)(1)(D),
which excludes from the speedy trial calculation "delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion." Orozco-Osbaldo cites no authority to
support his argument that the district court took too long in considering the motion for
joinder other than to contend that it was unreasonable. A plain reading of the statute
disposes of his argument because while the statute explicitly places time limits on
certain 4 "periods of delay," it does not include delay in the prompt disposition of
pretrial motions in those periods. Id. Because the district court properly excluded the
period during which it considered the pretrial motion for joinder, we find no violation
of the Speedy Trial Act.
B. Factual Basis for the Guilty Plea to the Conspiracy Count
Next, Orozco-Osbaldo contends that the district court had an insufficient factual
basis to accept his guilty plea as to the conspiracy count.
Orozco-Osbaldo did not object to the lack of a factual basis for his guilty plea
at the plea hearing, and accordingly, we review for plain error. See United States v.
Williams, 557 F.3d 556, 559 (8th Cir. 2009); United States v. Vonn, 535 U.S. 55, 59
(2002) ("[A] silent defendant has the burden to satisfy the plain-error rule . . . ."); see
also Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be
considered even though it was not brought to the court's attention."). "Plain error
exists when (1) there is error (2) which is plain and (3) affects substantial rights, and
we should only exercise our discretion to correct such error if it seriously affects the
fairness, integrity or public reputation of judicial proceedings." United States v.
Milam, 494 F.3d 640, 643 (8th Cir. 2007).
4Section 3161(h)(1)(F) establishes a ten-day limit for transportation of the
defendant and § 3161(h)(1)(H) establishes a thirty-day limit for periods when
proceedings are under advisement.
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Federal Rule of Criminal Procedure 11(b)(3) provides that "[b]efore entering
judgment on a guilty plea, the court must determine that there is a factual basis for the
plea."
For the purposes of [Rule 11(b)(3),] . . . a factual basis for a plea of
guilty is established when the court determines there is sufficient
evidence at the time of the plea upon which the court may reasonably
determine that the defendant likely committed the offense. This
determination is satisfied if the transcript describes the acts to which the
defendant pleaded guilty.
* * *
We have held that facts gathered from the prosecutor's summarization of
the plea agreement and the language of the plea agreement itself, a
colloquy between the defendant and the district court, and the stipulated
facts before the district court are sufficient to find a factual basis for a
guilty plea. The court may also consider facts set forth in the presentence
report to determine whether a factual basis for a guilty plea exists.
United States v. Brown, 331 F.3d 591, 594–95 (8th Cir. 2003) (internal quotations and
citations omitted). In this case, the evidence adduced during the day of trial, the
colloquy between the court and counsel for the government at Orozco-Osbaldo's Rule
11 proceeding, and the facts contained in the properly-relied-upon presentence
investigation report provide a sufficient factual basis to support the district court's
acceptance of the guilty plea as to the conspiracy count. This evidence, including
statements of cooperating witnesses, establishes that Orozco-Osbaldo conspired with
others to sell large quantities of methamphetamine. On these facts we do not discern
any error, plain or otherwise, on the part of the district court.
C. Information Considered by the District Court
Finally, Orozco-Osbaldo contends that the district court violated the recording
requirement of Federal Rule of Criminal Procedure 11(g). Specifically, he argues that
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the court improperly considered and relied upon unrecorded proceedings to support
the acceptance of his guilty pleas. Rule 11(g) states:
Recording the proceedings. The proceedings during which the defendant
enters a plea must be recorded by a court reporter or by a suitable
recording device. If there is a guilty plea or a nolo contendere plea, the
record must include the inquiries and advice to the defendant required
under Rule 11(b) and (c).
Orozco-Osbaldo maintains that the district court improperly considered an off-the-
record exchange between the court and himself. Orozco-Osbaldo is correct that an off-
the-record exchange took place in conjunction with the Rule 11 proceeding. However,
he fails to show that anything in the conversation that the district court disclosed and
discussed in the sentencing transcript implicated any recording requirements outlined
in Rule 11(g). The court specifically stated that it used the conversation, which
included counsel for the government and Orozco-Osbaldo, to confirm the court's
understanding of Orozco-Osbaldo's plea. The court did not interject itself into the plea
agreement process or fail to insure the record contained "the inquiries and advice to
the defendant required by Rule 11(b) and (c)." Consequently, we find that the district
court did not improperly consider or rely upon any unrecorded proceedings.
III. Conclusion
Accordingly, the judgment of the district court is affirmed.
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