           Case: 13-12988   Date Filed: 01/31/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12988
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:12-cr-00172-MEF-WC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

OSCAR BAEZ-ARROGO,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (January 31, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Oscar Baez-Arrogo appeals his conviction and sentence after pleading guilty

to being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §

922(g)(5). Although Mr. Baez-Arrogo’s conviction concerned his possession of,

and attempt to sell, a single firearm, the presentence investigation report (“PSI”)

assigned Mr. Baez-Arrogo a four-level enhancement, pursuant to U.S.S.G. §

2K2.1(b)(5), based on Mr. Baez-Arrogo’s sale of two firearms. Mr. Baez-Arrogo

objected to the enhancement but not to the facts in the PSI regarding the sale of the

second firearm. In response to his objection, the government disclosed evidence

establishing the sale of the second firearm.            The district court overruled the

objection and imposed a 21-month sentence. 1

                                              I.

       Mr. Baez-Arrogo argues that the government violated Rule 16 of the Federal

Rules of Criminal Procedure by failing to disclose evidence related to the sale of

the second firearm before he pled guilty. He further argues that, because the

government did not disclose this evidence, his guilty plea was not knowing and

voluntary. After careful review of the parties’ briefs and the relevant portions of

the record, we affirm.



1
  Relying on the PSI, the district court determined the Sentencing Guidelines range to be 30 to
37 months. The court then granted Mr. Baez-Arrogo a nine-month downward variance because
of his family circumstances. Had the court not applied the § 2K2.1(b)(5) enhancement, the
Sentencing Guidelines range would have been 18 to 24 months.
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                                              A.

       We review alleged discovery violations under Rule 16 for abuse of

discretion. United States v. Hastamorir, 881 F.2d 1551, 1559 (11th Cir. 1989).2

Rule 16(a) “spells out the materials the prosecution must produce on the

defendant’s request,” including “materials in the hands of a governmental

investigatory agency closely connected to the prosecutor.”                 United States v.

Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003).3 A discovery violation under Rule

16 is only reversible when it violates a defendant’s substantial rights. United

States v. Camargo-Vergara, 57 F.3d 993, 998 (11th Cir. 1995). “Substantial

prejudice exists when a defendant is unduly surprised and lacks an adequate

opportunity to prepare a defense or if the mistake substantially influences the jury.”

Id.

       Mr. Baez-Arrogo does not cite to any authority for the proposition that it is a


2
  As a preliminary matter, we reject the government’s argument that Mr. Baez-Arrogo’s appeal
should be dismissed based on the conviction-and-sentence appeal waiver in his plea agreement.
Mr. Baez-Arrogo’s appeal waiver included an exception for prosecutorial misconduct. Mr.
Baez-Arrozo argues that the failure to disclose relevant evidence violated Federal Rule of
Criminal Procedure 16 and thus constituted prosecutorial misconduct. Mr. Baez-Arrogo’s
argument thus arguably falls within the exception to the appeal waiver. See United States v.
Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003) (reviewing the dismissal of an indictment on the
ground of prosecutorial misconduct for Rule 16 discovery violations). Because we construe
ambiguities in a plea agreement against the government, see United States v. Jefferies, 908 F.2d
1520, 1523 (11th Cir. 1990), we conclude that the appeal waiver does not bar Mr. Baez-Arrogo’s
claims.
3
  Here, the evidence that the government disclosed regarding Mr. Baez-Arrogo’s sale of a second
firearm was a firearms trace summary from the Bureau of Alcohol, Tobacco, Firearms and
Explosives National Tracing Center.
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Rule 16 violation to disclose evidence relevant only to sentencing after a defendant

has entered a guilty plea. We need not decide this issue, however, because there

was no substantial rights violation.

      First, Mr. Baez-Arrogo never objected to the facts in the PSI establishing the

sale of the second firearm. Under our circuit precedent, this was enough to impose

the enhancement. See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006) (“It is the law of this circuit that a failure to object to the allegations of fact

in a PSI admits those facts for sentencing purposes.”); United States v. Hedges,

175 F.3d 1312, 1315 (11th Cir. 1999) (“the district court is entitled to rely on the

undisputed facts in the PSI if the defendant does not raise any objections to them”).

      Second, Mr. Baez-Arrogo had sufficient time to respond to the evidence

regarding the sale of the second firearm. He asked for and received a 21-day

continuance after the government disclosed the evidence. Ultimately, almost three

months passed between the grant of the continuance and his sentencing. He never

sought an additional continuance and never alleged at sentencing that he needed

more time to mount a defense to the enhancement. Thus, he cannot show that he

was “unduly surprised and lack[ed] an adequate opportunity to prepare a defense.”

See Camargo-Vergara, 57 F.3d at 998.

      Because Mr. Baez-Arrogo cannot show that his substantial rights were

prejudiced, we conclude that there was no reversible Rule 16 violation.


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                                                B.

       “The voluntariness of a guilty plea is a question of law reviewed de novo.”

United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). “A plea is

voluntary in a constitutional sense if the defendant receives real notice of the

charge[s] against him and understands the nature of the constitutional protections

he is waiving.” United States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005). In

accepting a defendant’s guilty plea, the district court must “ensur[e] that a

defendant (1) enters his guilty plea free from coercion, (2) understands the nature

of the charges, and (3) understands the consequences of his plea.” United States v.

Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

         Mr. Baez-Arrogo cannot show that his guilty plea was involuntary under

any standard of review because the plea agreement and change-of-plea hearing

transcript show that he understood the charge against him and the nature of the

rights he was waiving. See Frye, 402 F.3d at 1127. He knew at the time of his

guilty plea that the district court would determine his sentence based on “any

reliable evidence,” that he could receive up to ten years’ imprisonment, and that his

guideline range could differ from what his attorney had estimated. 4 He thus


4
  At the change-of-plea hearing, in addition to explaining the statutory maximum of ten years,
the district court explained that “the Court will not be able to determine the advisory guideline
range for your case until after a Presentence Report has been completed and you and the
Government have had an opportunity to challenge the reported facts and the application of the
guidelines as recommended by the probation officer, and that the sentence ultimately imposed
may be different from any estimate your attorney may have given.” D.E. 52 at 6-7. Moreover,
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“underst[ood] the nature of the charges” and “the consequences of his plea,” and

there are no allegations of coercion. See Moriarty, 429 F.3d at 1019.

       Mr. Baez-Arrogo argues that the government’s nondisclosure of facts

regarding the sale of a second firearm undermined the knowing and voluntary

nature of the guilty plea. These facts did not relate to his conviction, however,

only to his sentence. He cites to no authority indicating that a guilty plea is not

knowing and voluntary unless the defendant knows all facts relating to sentencing

prior to entering the plea.5 The Supreme Court has held that “the Constitution does

not require the prosecutor to share all useful information with the defendant” prior

to a guilty plea. See United States v. Ruiz, 536 U.S. 622, 628 (2002). Moreover,

“the law ordinarily considers a waiver knowing, intelligent and sufficiently aware

if the defendant fully understands the nature of the right and how it would likely

apply in the general circumstances – even though the defendant may not know the

specific detailed consequences of invoking it.” Id. Applying these principles, we

conclude that Mr. Baez-Arrogo’s guilty plea was voluntary and knowing even



the plea agreement stated that “Defendant . . . stipulates that the Court may make all findings for
sentencing and may make those findings by a preponderance of the evidence based upon any
reliable evidence, including hearsay.” D.E. 29 at 4.
5
   The only cases that Mr. Baez-Arrogo cites are from different circuits, and those cases
undermine rather than support his argument. See United States v. Brewster, 1 F.3d 51, 53 (1st
Cir. 1993) (rejecting the argument that “a sentencing court cannot rely on evidence not known to
a defendant at the time of the plea”); United States v. Benitez, 34 F.3d 1489, 1497 (9th Cir. 1994)
(finding that the district court did not err in applying an enhancement based on prior convictions
that the government discovered after the plea agreement was executed).
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though he was unaware that the government possessed evidence regarding his sale

of a second firearm.

      Thus, the district court did not err, plainly or otherwise, in accepting and not

later withdrawing Mr. Baez-Arrogo’s guilty plea.

                                         II.

      The conviction and sentence of Mr. Baez-Arrogo are affirmed.

      AFFIRMED.




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