                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-2008

USA v. Mendez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5526




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 05-5526


           UNITED STATES OF AMERICA

                           v.

                  SANTOS MENDEZ,
                   a/k/a RED ALERT,
                        a/k/a RED,
              a/k/a JULIO C. VALENTIN,
           a/k/a JULIO CESAR MONRROY,
                                   Appellant
             (D.C. Crim. No. 03-cr-00088-1)


                     No. 05-5527


           UNITED STATES OF AMERICA

                           v.

                   SANTOS MENDEZ,
                    a/k/a RED ALERT,
                         a/k/a RED,
               a/k/a JULIO C. VALENTIN,
           a/k/a JULIO CESAR MONRROY,
                                    Appellant
              (D.C. Crim. No. 03-cr-00087)


APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    District Judge: The Honorable Michael M. Baylson
                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 6, 2008


       Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges

                             (Opinion Filed: May 29, 2008)


                                        OPINION


BARRY, Circuit Judge

      Appellant Santos Mendez appeals the judgment of sentence, alleging that one of

his two guilty pleas was not made knowingly and intelligently. We have jurisdiction over

this appeal pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will affirm.

                                            I.

      Because we write exclusively for the parties, who are familiar with the facts and

proceedings before the District Court, we will revisit them only briefly. Mendez was the

leader of a drug trafficking organization in North Philadelphia that was under FBI

investigation. The street corners Mendez “owned” were within 1,000 feet of a public

elementary school. Mendez controlled the drug activities on these corners using violence

and intimidation and personally sold crack cocaine, heroin, cocaine, and marijuana. In

the course of the drug investigation, wiretaps on Mendez’s cell phone revealed that he

was planning home-invasion robberies targeted primarily at drug traffickers. In January

2002, a joint task force of the Philadelphia Police Department and the FBI intercepted

calls revealing that Mendez and three of his co-defendants planned to rob the home of the

                                            2
owners of a restaurant using a pizza delivery ruse to gain entry. On January 25, 2002,

Mendez and his co-defendants carried out the armed robbery, leaving the victims, a man

and his pregnant wife and small child, bound and restrained in the basement. Mendez and

his co-defendants left the scene in two vehicles. Police, who were patrolling the area in

an effort to find Mendez and prevent the robbery, saw the vehicles, pulled them over, and

arrested the occupants, including Mendez. Items from the victims’ home were found in

the vehicles. The male victim of the robbery later identified Mendez, and one of

Mendez’s co-defendants confessed and implicated Mendez as the leader and organizer of

the robbery.

       Mendez and four co-defendants were indicted for conspiracy to affect commerce

by robbery in violation of 18 U.S.C. § 1951(a), (b)(1), (b)(3) (“count one”), interference

with commerce by robbery in violation of 18 U.S.C. § 1951(a), (b)(1), (b)(3) (“count

two”), and using and carrying a firearm during the commission of a violent crime in

violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), and 2 (“count three”), and Mendez and one co-

defendant were indicted for being felons in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) (“count four”). In a second indictment, Mendez and seven co-

defendants were charged with separate drug distribution and related firearm charges

arising out of a drug trafficking conspiracy.1 On November 24, 2003, Mendez entered an


1
 Mendez was indicted for conspiracy to distribute and possess with intent to distribute
more than 50 grams of cocaine and more than 1,000 grams of heroin within 1,000 feet of
a school in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 860; using and
carrying a firearm during and in relation to a drug crime in violation of 18 U.S.C. §§
924(c)(1), and 2; and being a felon in possession of a firearm in violation of 18 U.S.C. §§
                                              3
open guilty plea without a plea agreement to all four counts charged in the first

indictment. On January 23, 2004, Mendez entered an open guilty plea without a plea

agreement to all the counts charged in the second indictment.2 Mendez does not dispute

the validity of the second guilty plea. On the government’s motion, the two cases were

consolidated for sentencing, and sentence was imposed on December 13, 2005. 3

                                             II.

       As Mendez did not make any objections when he pled guilty on November 24,

2003 nor did he ever file a motion to withdraw that guilty plea, the standard of review is

plain error. United States v. Dixon, 308 F.3d 229, 233 (3d Cir. 2002). Under this

standard, Mendez must establish that the error was obvious under the law and affected his

substantial rights. Id. at 234. To show that an error affected his substantial rights, he

must demonstrate prejudice and prove that had it not been for the error, the outcome



922(g)(1), and 2.

2
 The first plea was entered before District Judge Timothy J. Savage, and the second was
entered before District Judge Michael M. Baylson, who also conducted the sentencing
hearing.

3
  On the first indictment, Mendez was sentenced to 240 months on each of counts one and
two, and 120 months on count four, the sentences to run concurrently. On count three, he
was given a sentence of seven years to run consecutively. On the second indictment, he
was sentenced to life for the drug conspiracy, a mandatory consecutive sentence of 25
years for using and carrying a firearm during a drug trafficking crime, and 120 months
imprisonment for the felon in possession of a firearm charge. With the exception of the
sentences that were statutorily mandated to run consecutively, all the sentences in both
indictments were to run concurrently. Mendez was already serving a life sentence after
pleading guilty in state court to first degree murder. The Court ordered that the sentences
imposed were to run concurrently with his state sentence.

                                              4
would have been different. Id.

                                              III.

         The validity of a guilty plea rests on whether the plea was “knowing, voluntary

and intelligent.” United States v. Tidwell, 521 F.3d 236, 2008 WL 835252, *13 (3d Cir.

2008). Rule 11 of the Federal Rules of Criminal Procedure requires the court to engage

in a colloquy to “determine that the plea is voluntary.” Fed. R. Crim. P. 11(b)(2).

Mendez claims that his guilty plea to the first indictment was not made knowingly and

intelligently, and that the District Court should not have accepted that guilty plea because

it knew that Mendez had sustained a head injury and was not fully conversant in the

English language.4

         It is beyond doubt that Mendez fully understood the consequences of his guilty

plea and that the District Court conducted a thorough inquiry into whether he was

mentally alert and understood English. When Mendez informed the Court about the

“bump on [his] head” (App. 15), which he claimed was the result of an assault, the Court

asked him if he understood what the Court was talking about and whether he had

understood his attorney when he talked to him before the hearing. Mendez confirmed

that he had understood his attorney and understood the Court so far. Even so, the District

Court instructed Mendez to interrupt if he did not understand something the Court said.

         Neither did the District Court have any reason to believe that Mendez’s

understanding of the plea hearing was inhibited due to any deficiencies in his ability to

4
    Mendez does not challenge the sufficiency of the colloquy itself.

                                               5
understand English. When the Court asked him if he could read, write, and understand

English, he said he could write it, and could “read it and understand it a little bit.” (App.

14.) After further inquiry, he explained that he sometimes couldn’t “remember the

paragraphs [he] read” and had a problem pronouncing some words. (Id.) The Court then

asked if he could understand when he read English and he replied that he understood

some words, but that his vocabulary was not good. The Court instructed him to interrupt

if he did not understand any word the Court used.

       Throughout the hearing, Mendez answered all of the Court’s questions in English,

demonstrated no difficulty comprehending those questions, at no time said he did not

understand, and never requested a Spanish interpreter. Nor did Mendez’s counsel request

an interpreter or otherwise object to the use of English. Simply stated, there is nothing in

the record that would lead to the conclusion that Mendez had difficulty with English. We

note, moreover, that the PSR stated that, although Mendez was born in Puerto Rico, he

has lived in the United States since the late 1970’s, graduated from a public school in

Philadelphia and, for a short time, worked in retail. We also note that almost all of

Mendez’s intercepted telephone calls were in English.

       Mendez argues that the presence of an interpreter at the second plea hearing is

evidence that he was not conversant in English. We reject that argument based on the

colloquy conducted at that hearing. When the District Court asked defense counsel if

Mendez required an interpreter, counsel told the Court that Mendez did not need one,

“[h]e talk[ed] to him all the time” (App. 52), and a Spanish interpreter had confirmed

                                              6
with Mendez that he felt comfortable with the hearing being conducted in English and did

not need an interpreter. When questioned by the Court as to whether he could read and

write English, and whether he fully understood English, Mendez said that he did.

Mendez accepted the Court’s offer for the interpreter to stand by in the event he had any

questions, and the Court instructed Mendez that if at any time he did not understand

something he should ask the interpreter to translate or for the Court to repeat what had

been said. Despite the presence of the interpreter, however, Mendez answered all the

questions in English, did not ask for a translation, and did not otherwise say that he did

not understand.

       Finally, Mendez argues that his use of an interpreter at his sentencing hearing is

“troubling” and is further evidence that he could not fully understand English. On the day

originally set for sentencing, defense counsel told the District Court that it might be

“wise” to have an interpreter because although he always talked to Mendez without an

interpreter, Mendez sometimes got confused and, despite the fact that Mendez had not

previously used an interpreter, sentencing was too important to continue without an

interpreter. The prosecutor noted that he had also spoken to Mendez in English, but that

an interpreter should be present out of caution. The Court agreed, and postponed the

hearing because no interpreter had been ordered. At the sentencing hearing some days

later, Mendez used the interpreter and, interestingly, Mendez’s counsel read a letter to the

Court that Mendez had written in English. The fact that the Court permitted an interpreter

to be used at the sentencing hearing does not alter the fact that, at the plea hearing in

                                              7
question, Mendez confirmed multiple times that he understood English and at no point

evinced any difficulty in comprehension.

                                           IV.

       We see no error here, much less plain error. We will affirm the judgment of the

District Court.
