                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4802


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

v.

ALTAGRACIA ACOSTA SUAREZ, a/k/a Charo,

             Defendant – Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:14-cr-00119-HCM-RJK-5)


Submitted: December 21, 2017                                 Decided: February 12, 2018


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge
Keenan and Judge Diaz joined.


Andrew M. Stewart, DENNIS, STEWART, KRISCHER, & TERPAK, PLLC, Arlington,
Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia,
Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

       Defendant-Appellant Altagracia Acosta Suarez was charged with several drug-

related offenses. On November 9, 2015, she pleaded guilty to one count of using

communication facilities to cause, commit or facilitate a felony violation of the

Controlled Substances Act, 21 U.S.C. § 843(b). The district court initially accepted her

plea but, after questioning Acosta Suarez, it determined that she continued to deny

criminal intent. The court thus rejected her plea. Next, Acosta Suarez pleaded guilty to

distribution of cocaine, 21 U.S.C. § 841(a)(1), and aiding and abetting the distribution of

cocaine, 18 U.S.C. § 2. Again, the district court accepted her plea and subsequently

reversed course.    This time, it rejected Acosta Suarez’s plea because she did not

completely admit her guilt and because her plea was based on a misunderstanding of the

corresponding plea agreement. We affirm the district court’s rejection of both pleas,

holding that the court exercised its discretion soundly.



                                             I.

       In 2012, Acosta Suarez sold cocaine to her coworkers on several occasions. By

May 2013, however, she seems to have stopped selling drugs directly. Instead, she

became an intermediary between a local drug dealer, German Ponce, and one of her

colleagues, Calvin Murphy. For the next year, Acosta Suarez regularly used her cell

phone to schedule cocaine sales between Ponce and Murphy. In June 2014, officers from

the Drug Enforcement Agency observed one of these sales and arrested Ponce. A few

months later, they arrested Acosta Suarez.

                                             2
       During most of the relevant period, Acosta Suarez’s husband was a confidential

informant for the Immigration and Customs Enforcement Agency (“ICE”).                 Acosta

Suarez was not.



                                             II.

       On December 17, 2014, Acosta Suarez was charged with one count of conspiracy

to distribute and possess with intent to distribute cocaine and two counts of using

communication facilities--i.e., a cell phone--to facilitate felony violations of the

Controlled Substances Act. On March 23, 2015, Acosta Suarez signed a plea agreement

in which she agreed to plead guilty to one count of using communication facilities to help

violate the Controlled Substances Act and the government agreed to drop the remaining

charges.

       The case was then assigned to a magistrate judge, who conducted Acosta Suarez’s

plea hearing. At the hearing, the magistrate judge accepted Acosta Suarez’s guilty plea,

but advised her that “[i]t remain[ed] for [the district court] to enter the finding of guilty

and to impose sentence” and that the district court could defer taking such action until

“the presentence report . . . is received and any factual disputes are resolved.” J.A. 65.

       On June 15, 2015, the U.S. Probation Office submitted Acosta Suarez’s

presentence report (the “PSR”) to the district court. The PSR recommended that, in

deciding what sentence to impose on Acosta Suarez, the court should consider the

amount of cocaine that she sold to her coworkers and helped Ponce sell to Murphy. Two

weeks later, Acosta Suarez objected to this recommendation, arguing that she should not

                                              3
be “attributed with any drug weights” because she was “under the mistaken belief . . . that

she was assisting her husband in gathering information for [federal] law enforcement

officers” when she participated in these drug sales. J.A. 93 (internal quotation marks

omitted). The government opposed this objection.

       On July 21, 2015, the district court convened a sentencing hearing.          At the

beginning of the hearing, the court adjudged Acosta Suarez guilty. The court stated,

however, that before it could proceed with sentencing it had to resolve Acosta Suarez’s

objection. Specifically, the court needed to determine whether Acosta Suarez disputed

any of the criminal conduct attributed to her in the PSR because, if she did, she would not

be eligible for an “acceptance of responsibility” reduction to her sentence.

       To resolve this issue, the district court questioned Acosta Suarez under oath.

During questioning, Acosta Suarez admitted that she had sold cocaine to her coworkers

and scheduled drug deals for Ponce.         However, Acosta Suarez explained that she

participated in these illicit transactions because she “felt protected” by her husband’s

connection to ICE and because she wanted to help the federal agents collect incriminating

evidence against Ponce. J.A. 111–12. Based on Acosta Suarez’s testimony, the court

found that she denied the criminal intent element of using communication facilities to

help violate the Controlled Substances Act. Thus, the court reversed its acceptance of

Acosta Suarez’s guilty plea and scheduled the case for trial.          The case was also

reassigned to a different district judge.

       On November 5, 2015, the government filed a criminal information, charging

Acosta Suarez with distributing cocaine and aiding and abetting the distribution of

                                             4
cocaine. Four days later, Acosta Suarez waived her right to an indictment and agreed to

plead guilty to the charges in the criminal information. In exchange, the government

agreed to dismiss all of the other charges pending against her. The parties submitted a

statement of facts in support of the plea agreement, which stated that, in August 2013,

Acosta Suarez organized the sale of 3.5 grams of cocaine.

      After a second plea hearing, the district court adjudged Acosta Suarez guilty of

distributing cocaine. The U.S. Probation Office then completed a new PSR for Acosta

Suarez. It recommended that the court should consider, as relevant criminal conduct,

657.28 grams of cocaine that Acosta Suarez helped Ponce distribute from 2013 to 2014.

Acosta Suarez filed an objection to the PSR, arguing that her sentence should be based

solely on the 3.5 grams of cocaine contained in the statement of facts. She also argued

that she should not be held responsible for any additional drug amounts because she only

sold cocaine under the belief that she was helping ICE collect evidence on Ponce.

      On February 25, 2016, the district court convened a hearing to resolve Acosta

Suarez’s objection. Acosta Suarez argued that her counsel advised her that, under the

plea agreement, the government could not attribute more than 3.5 grams of cocaine to her

at sentencing. The government responded that the plea agreement did not limit Acosta

Suarez’s responsibility to 3.5 grams. In light of this misunderstanding, the court found

that “there was no meeting of the minds as to the meaning of the plea agreement.” J.A.

225. The court also found that Acosta Suarez’s contention that she was working for ICE

when she scheduled the relevant drug sales indicated that she did not fully admit her



                                            5
guilt, foreclosing a factual basis for her guilty plea. Thus, the court rejected the plea

agreement and Acosta Suarez’s guilty plea.

       The following week, the court convened an arraignment during which Acosta

Suarez pleaded “not guilty.” J.A. 11. The case then proceeded to trial. After a bench

trial, the court found Acosta Suarez guilty of one count of conspiracy to distribute and

possess with intent to distribute cocaine, one count of aiding and abetting the distribution

of cocaine, and one count of using communication facilities to cause, commit or facilitate

a felony violation of the Controlled Substances Act. The court sentenced Acosta Suarez

to three terms of forty-eight months in prison to run concurrently. This appeal followed.



                                             III.

       “A court may reject a plea in exercise of sound judicial discretion.” Santobello v.

New York, 404 U.S. 257, 262 (1971). Acosta Suarez argues that, once a court has

accepted a guilty plea, Federal Rule of Criminal Procedure 11(b)(3) prohibits it from

reversing course and rejecting that plea. According to Acosta Suarez, the court violated

this prohibition and therefore abused its discretion by rejecting each of her guilty pleas

after it had accepted them. Alternatively, Acosta Suarez argues that if a court rejects the

plea agreement under which a guilty plea was entered, Rule 11(c)(5) requires the court to

provide the defendant an opportunity to persist in his or her plea. Acosta Suarez contends

that the district court did not provide her with this opportunity after it found that her

second guilty plea was based on an invalid agreement.



                                              6
                                             A.

       Our discussion of Acosta Suarez’s first argument proceeds in two parts. First, we

reject her interpretation that Rule 11(b)(3) prohibits a court from rejecting a guilty plea if

the court previously found that the plea had a factual basis. We then conclude that the

district court exercised its discretion soundly when it rejected each of the pleas.



                                              i.

       Acosta Suarez argues that, if a court initially finds that a guilty plea has a factual

basis, Rule 11(b)(3) prohibits it from subsequently rejecting the plea, even though new

developments in the case convince the court that the plea lacks a factual basis. We reject

Acosta Suarez’s interpretation of Rule 11(b)(3) because it lacks support in the rule’s text

and is contrary to its purpose.

       To begin, Rule 11(b)(3) states, “Before entering judgment on a guilty plea, the

court must determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).

The rule creates a condition for entering judgment on a guilty plea. It does not, however,

constrain the court’s ability to reject a plea. In other words, when a court determines that

a defendant’s guilty plea has a factual basis, Rule 11(b)(3) permits the court to impose a

sentence based on that plea, but it does not require the court to do so. Accordingly, the

rule’s text does not support Acosta Suarez’s argument that once a court finds that a

defendant’s guilty plea has a factual basis, it must enter judgment on the plea regardless

of new developments in the case. Indeed, the text weighs in the opposite direction,



                                              7
suggesting that if new developments convince a court that a guilty plea lacks a factual

basis, the condition for entering judgment on that plea has not been satisfied.

       Second, Acosta Suarez’s interpretation is in tension with the rule’s primary

objective, which is to “protect a defendant who [pleads guilty to a charge] . . . without

realizing that his [or her] conduct does not actually fall within the charge.” McCarthy v.

United States, 394 U.S. 459, 467 (1969) (quoting Fed. R. Crim. P. 11, Notes of Advisory

Committee on Criminal Rules). This objective is undermined by prohibiting a court from

rejecting a guilty plea that it believes lacks a factual basis merely because it came to the

opposite conclusion on a less complete record. On the other hand, Rule 11(b)(3)’s

purpose is well-served by an interpretation that imposes on courts an ongoing duty to

satisfy themselves that a guilty plea has a factual basis in light of any new information

that arises as the case moves towards final judgment.

       For these reasons, we are compelled to hold that Rule 11(b)(3) does not constrain

a court’s discretion to reject a guilty plea that lacks a factual basis, regardless of whether

the court previously found that the plea had such a basis.



                                             ii.

       The district court did not abuse its discretion by rejecting Acosta Suarez’s first

guilty plea because it reasonably determined that the plea lacked a factual basis.

Similarly, the court did not abuse its discretion by rejecting Acosta Suarez’s second

guilty plea because that plea was based on an incorrect understanding of the agreement

under which it was entered and lacked a factual basis. We discuss each plea in turn.

                                              8
       We begin with Acosta Suarez’s first plea. A district court exercises its discretion

to reject a guilty plea soundly when it reasonably determines that the plea lacked a factual

basis. See United States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). A guilty plea

lacks a factual basis if the facts admitted to by the defendant are insufficient to constitute

the crime to which he or she is pleading guilty. See McCarthy, 394 U.S. at 467. Here,

Acosta Suarez pleaded guilty to one count of using communication facilities to commit,

cause or facilitate felony violations of the Controlled Substances Act. During the July 21,

2015, hearing, however, Acosta Suarez stated that she only scheduled the cocaine

transactions because she believed that she was helping ICE collect evidence on Ponce

and Murphy. In light of this testimony, the district court’s conclusion that Acosta Suarez

failed to admit criminal intent, and thus did not admit sufficient facts to constitute the

crime to which she was pleading guilty, was reasonable. Accordingly, the court did not

abuse its discretion by rejecting Acosta Suarez’s plea.

       We now consider Acosta Suarez’s second guilty plea. A district court acts within

its discretion by rejecting a plea when it determines that defendant entered the plea

without sufficient awareness of the likely consequences. See Brady v. United States, 397

U.S. 742, 748 (1970) (holding that a guilty plea “must be [a] knowing, intelligent act[]

done with sufficient awareness of the relevant circumstances and likely consequences”).

On November 9, 2015, Acosta Suarez pleaded guilty to one count of distributing cocaine

and aiding and abetting the distribution of cocaine. It is undisputed that Acosta Suarez’s

plea was based on her lawyer’s mistaken advice that, under the relevant plea agreement,

she would only be sentenced for the distribution of 3.5 grams of cocaine. During the

                                              9
February 25, 2016, sentencing hearing, however, the government stated that it did not

interpret the plea agreement as limiting Acosta Suarez’s responsibility to 3.5 grams of

cocaine and that it would seek a sentence that reflected her distribution of 657.28 grams

instead. Given these statements, the district court reasonably concluded that Acosta

Suarez pleaded guilty without sufficiently understanding the consequences of her plea.

       Additionally, the district court found that Acosta Suarez’s objection to the 657.28

grams of cocaine indicated that she continued to deny criminal intent because the

objection was based on her assertion that she had only sold drugs to help ICE investigate

Ponce. This finding reasonably supported the conclusion that her plea lacked a factual

basis. Thus, the district court did not abuse its discretion by rejecting the second plea.



                                             B.

       Alternatively, Acosta Suarez contends that Rule 11(c)(5) requires a court to

provide a defendant with the opportunity to persist in his or her guilty plea after the court

determines that the plea was based on an invalid plea agreement. Acosta Suarez argues

that the district court deprived her of that opportunity because it rejected her second

guilty plea after it found that her corresponding plea agreement with the government was

invalid. We find this argument unavailing because it misrepresents the relevant facts and

misconstrues Rule 11(c)(5).

       To begin, the district court afforded Acosta Suarez an opportunity to persist in her

second guilty plea after finding that the underlying plea agreement was invalid. Although

the court rejected Acosta Suarez’s plea at the February 25, 2016, sentencing hearing, it

                                             10
convened an arraignment the following week to allow her to enter a new plea. There is

no indication in the record, and Acosta Suarez does not contend, that the court prevented

her from entering a guilty plea during the arraignment.

       Second, Acosta Suarez’s argument misconstrues Rule 11(c)(5). While the rule

may require a court to provide a defendant with an opportunity to persist in his or her

guilty plea, it does not guarantee that the court will accept that plea. The rule states:

       (5) Rejecting a Plea Agreement. If the court rejects a plea agreement . . . ,
       the court must do the following on the record and in open court (or, for
       good cause, in camera):

          (A) inform the parties that the court rejects the plea agreement;

          (B) advise the defendant personally that the court is not required to
          follow the plea agreement and give the defendant an opportunity to
          withdraw the plea; and

          (C) advise the defendant personally that if the plea is not withdrawn, the
          court may dispose of the case less favorably toward the defendant than
          the plea agreement contemplated.

Fed. R. Crim. P. 11(c)(5). The rule creates safeguards to ensure that defendants have the

opportunity to withdraw their guilty pleas if a district court determines that they will not

be entitled to the benefits of their plea agreements with the government. But it does not

constrain the court’s separate authority to reject a plea because it determines, for

example, that the defendant entered the plea based on erroneous assumptions about the

consequences of doing so or that the plea lacks a factual basis. The decision to reject a

plea under those circumstances is committed to the court’s discretion, which the district

court exercised soundly in this case when it rejected Acosta Suarez’s second guilty plea.



                                              11
                                            IV.

       In sum, we hold that the district court did not abuse its discretion by rejecting

either of Acosta Suarez’s guilty pleas. Accordingly, the judgment of the district court is

                                                                              AFFIRMED.




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