     Case: 12-20047       Document: 00512170688         Page: 1     Date Filed: 03/11/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 11, 2013

                                       No. 12-20047                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

IGNACIO CERVANTES DIAZ, also known as Nacho,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 4:10-CR-369-2


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Ignacio Cervantes Diaz (“Diaz”) appeals his guilty plea
conviction for possession with intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Diaz argues that his
guilty plea was unknowing and involuntary because the calculation of his
guideline sentence was based on a drug quantity higher than the drug quantity
orally agreed to between him and the Government. Finding no plain error, we
AFFIRM for the reasons more fully set forth below.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-20047

                                       I.
      On January 27, 2011, a superseding indictment was filed charging Diaz
with possession with intent to distribute 100 kilograms or more of marijuana in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); on January 28, 2011, Diaz pled
guilty pursuant to a plea agreement. At the plea hearing, Diaz stated that he
had read the plea agreement and understood its contents and stated that no
promises or assurances had been made to induce his guilty plea.
      The initial Presentence Report (“PSR”) recommended that Diaz be held
responsible for 213.6 kilograms of marijuana seized on March 21, 2010 (the
charged offense), as well as 553 pounds of marijuana seized on September 3,
2009, and 24 kilograms of cocaine seized on October 24, 2009. Diaz and the
Government objected to the drug quantity, arguing that the parties intended
that he would be held responsible only for 213.6 kilograms of marijuana related
to the charged offense. The probation officer responded that the additional drug
quantities were part of the same course of conduct or common scheme or plan
and that the district court was not bound to follow stipulations in the plea
agreement.
      On October 24, 2011, a second PSR was completed which deleted the 553
pounds of marijuana seized on September 3, 2009, but kept the 24 kilograms of
cocaine that was seized on October 24, 2009, and added 28.4 kilograms of cocaine
that was seized on October 21, 2009, along with the 213.6 kilograms of
marijuana seized on March 21, 2010. The probation officer explained that the
three drug seizures in the revised PSR were part of the same course of conduct
and common scheme or plan because of temporal proximity, involvement of the
same accomplices, a common victim, and a similar modus operandi. Further, the
probation officer noted that the findings were based on facts presented in the
investigative materials and supported by Diaz’s own admissions as well as
details provided by other criminal participants. The probation officer concluded

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                                       No. 12-20047

that Diaz was responsible for much more than the three drug transactions for
which he was being held responsible. Again, Diaz and the Government objected
to the drug quantity in the revised PSR, arguing that Diaz should only be held
responsible for the 213.6 kilograms of marijuana seized on March 21, 2010.
       At the sentencing hearing in January 2012, the district court denied the
objections to the PSR. The district court sentenced Diaz within the advisory
guidelines range of 108 to 135 months to 108 months of imprisonment and five
years of supervised release. Diaz appeals.
                                              II.
       The Government argues that Diaz knowingly and voluntarily waived his
right to appeal as part of his plea agreement and that the appeal waiver is valid
and should be enforced. The plea agreement provides that the defendant agrees
to waive the right to appeal the sentence imposed or the manner in which it was
determined. The plea agreement, however, does not bar the instant appeal
because Diaz’s only argument is that his guilty plea was unknowing and
involuntary. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
                                             III.
       Although Diaz and the Government objected to the PSR on the grounds
that they intended that he be held responsible for only the 213.6 kilogram load
of marijuana, Diaz did not argue in the district court that his guilty plea was
unknowing and involuntary. As such, this court's review is for plain error.1 To
demonstrate plain error, Diaz must show a forfeited error that is clear or obvious
and that affects his substantial rights, and this court generally will exercise its
discretion to correct the error only if it “seriously affect[s] the fairness, integrity



       1
        See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (“A party
must raise a claim of error with the district court in such a manner so that the district court
may correct itself and thus, obviate the need for [this court's] review.”) (internal quotation
marks and citation omitted).

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                                  No. 12-20047

or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S.
129, 135 (2009) (internal quotation marks and citation omitted).
                                       IV.
      The crux of the case is whether Diaz’s guilty plea was unknowing and
involuntary. Diaz argues that his guilty plea was induced by an agreement with
the Government that he would be held responsible for only the 213.6 kilograms
of marijuana and no other criminal activities would be taken into consideration
during sentencing. He asserts that because of the misrepresentation by the
Government and defense counsel, he lacked a full understanding of the plea and
its consequences.
      Whether a guilty plea is knowing looks to whether the defendant
understands the direct consequences of his plea including the maximum possible
penalty, while voluntariness looks to whether the plea was induced by threats,
misrepresentation, unfulfilled promises, or improper promises. United States v.
Hernandez, 234 F.3d 252, 255 & n.3 (5th Cir. 2000) (28 U.S.C. § 2255 case); see
also Fed. R. Crim. P. 11(b)(2) (voluntariness inquiry). Regarding sentencing
consequences, the defendant must know only his “maximum prison term and
fine for the offense charged.” United States v. Guerra, 94 F.3d 989, 995 (5th Cir.
1996) (internal quotation marks and citation omitted). In making this
determination, this court bears in mind that “solemn declarations in open court
carry a strong presumption of verity.” United States v. McKnight, 570 F.3d 641,
649 (5th Cir. 2009) (internal quotation marks and citation omitted). A defendant
ordinarily may not refute testimony given under oath at a plea hearing. United
States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (28 U.S.C. § 2255 case).
      The record weighs against Diaz’s argument that his plea was unknowing
because he clearly understood the direct consequences of his plea, including the
maximum possible penalty. The plea agreement did not expressly state that Diaz
would be held accountable for only the 213.6 kilogram load of marijuana. Diaz

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                                  No. 12-20047

was aware that a sentence had not yet been determined. He was also aware that
any estimate of the sentencing range under the Sentencing Guidelines that he
might have received from his counsel, the Government, or the Probation Office
was a prediction, not a promise, and did not induce his guilty plea. Moreover, the
plea agreement stated that Diaz understood and agreed that the Sentencing
Guidelines were advisory and that the district court was not bound by them.
Furthermore, the plea agreement does not state that the district court would
refrain from using relevant conduct, where appropriate, to calculate the offense
level.
         Diaz’s argument that his plea is involuntary is unavailing because he
affirmed in open court under oath that his plea was not induced by threats,
misrepresentation, unfulfilled promises, or improper promises. See Hernandez,
234 F.3d at 255 & n.3. Diaz acknowledged that he had consulted with his counsel
and that he fully understood his rights concerning the indictment. Diaz also
acknowledged that his counsel fully explained and that he understood the
guidelines provisions that may apply to his case, and that he had read,
understood, and voluntarily agreed to the terms of the plea agreement. At the
rearraignment, the district court asked Diaz whether he had read and discussed
the plea agreement with his counsel, and he answered affirmatively. The district
court also advised him of the statutory maximum penalties for the offense,
explained supervised release, and explained that the sentence would be
determined based on the Sentencing Guidelines; again, Diaz stated that he
understood. He also stated that he understood that if the Government made a
recommendation for leniency and the court did not grant that leniency, he would
still have to stand by his guilty plea and would not be able to withdraw it.
Notably, Diaz acknowledged before the district court that he did not have any
other agreement with the Government other than that set forth in the plea
agreement; that he had not received any promise or assurance of any kind to get

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                                       No. 12-20047

him to plead guilty; and that he had not been threatened or coerced into pleading
guilty by the Government or anyone else. Diaz’s statements at the
rearraignment hearing carry “a strong presumption of verity.” McKnight, 570
F.3d at 649 (internal quotation marks and citation omitted).
       Furthermore, the guidelines make clear that the district court is not bound
by a stipulation of the parties but may determine the facts with the aid of the
PSR and additional evidence taken at sentencing. U.S. Sentencing Guidelines
Manual § 6B1.4(d) [hereinafter U.S.S.G.]; United States v. Woods, 907 F.2d 1540,
1542 (5th Cir. 1990). The district court is entitled to base a defendant's sentence
upon a significantly larger amount of drugs than charged in the indictment and
stipulated by the parties at the time of the guilty plea. Id.; see also United States
v. Garcia, 902 F.2d 324, 326-27 (5th Cir. 1990) (rejecting argument that the
district court was bound by the stipulation of drug quantity in the plea
agreement and holding that the court may determine the facts relative to
sentencing with the aid of the PSR). The guidelines include a defendant's
relevant conduct in calculating a base offense level, by adding drug amounts that
were part of the same course of conduct or common scheme or plan as the offense
of conviction.2 Conduct that is charged in dismissed counts of an indictment may
be considered as relevant conduct for sentencing purposes. United States v. Vital,
68 F.3d 114, 118-19 (5th Cir. 1995) (drug quantity case).
       Any understanding or intent shared by the Government and Diaz
concerning the drug quantity upon which Diaz’s sentence would be based does
not undermine the overwhelming evidence in the record that his plea was
knowing and voluntary.



       2
         See U.S.S.G. § 1B1.3(a)(1)(B), (a)(2); see also U.S.S.G. § 6B1.2(a) (“a plea agreement
that includes the dismissal of a charge . . . shall not preclude the conduct underlying such
charge from being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection
with the count(s) of which defendant is convicted.”).

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                              No. 12-20047

                                   V.
     Because we reject Diaz’s argument that his plea agreement was
unknowing and involuntary, we AFFIRM the judgment of the district court.
AFFIRMED.




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