                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           AUGUST 26, 2009
                             No. 08-15541                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 99-06153-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALEJANDRO BERNAL-MADRIGAL,
a.k.a. Tony,
a.k.a. Juvenal,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (August 26, 2009)

Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Alejandro Bernal-Madrigal appeals the district court’s denial of his pro se

motion to compel the Government to abide by the terms of a written plea

agreement and oral promises. He asserts several issues on appeal, which we

address in turn. After review, we affirm the district court.

                                 I. BACKGROUND

      In 2003, Bernal-Madrigal pled guilty, pursuant to a written plea agreement,

to one count of engaging in a continuing criminal enterprise, involving importation

of over 9,000 kilograms of cocaine into the country, in violation of 21 U.S.C.

§ 848(a) and (c). The written plea agreement stated, among other things, that “if

the defendant is prosecuted and convicted on charges initiated by Mexican

authorities, it will recommend to Mexican authorities that his sentence run

concurrently with his sentence in this case.” Further, the agreement stated:

      [I]f the defendant requests, and in the judgment of the United States
      the request is reasonable, the United States will make application with
      the Immigration and Naturalization Service (“INS”) for an “S” visa on
      behalf of the defendant. It is understood the United States has
      authority only to apply for and recommend an “S” visa, and that the
      final decision to issue the visa rests with the INS.

It also contained an integration clause, stating the written plea agreement “is the

entire agreement and understanding between the United States and the defendant.

There are no other agreements, promises, representations, or understandings.”




                                           2
       In April 2008, Bernal-Madrigal filed the present pro se motion to compel the

Government to cure their breach of the plea agreement. First, he asserted the

Government orally promised to secure the return of his property in Colombia,

which was seized by the Colombian government. Second, he contended the

Government promised, in writing, to secure an S-visa for him, and orally agreed to

include his wife, and to get documents for other members of his family securing

permanent legal residence in the United States. Finally, he asserted the

Government orally promised another sentence reduction1 which would result in his

being released in December 2005.

       The magistrate judge issued a report and recommendation (R&R) on July 3,

2008, that the motion be denied for lack of jurisdiction because, absent

unconstitutional motives, the Government’s refusal to file a Rule 35 motion is not

reviewable. The magistrate judge did not directly address the alleged promise to

seek the return of Bernal-Madrigal’s Colombian property. The magistrate judge

also found the unambiguous terms of the agreement showed there was no promise

to file for an “S” visa for his family members or a downward departure motion.




       1
          Bernal-Madrigal had already received two sentence reductions. He received a
reduction from the minimum Guidelines range at his original sentencing in 2003, and received
an additional reduction when the district court granted the Government’s Fed. R. Crim. P. 35
motion for reduction in sentence in 2005.

                                              3
      Because Bernal-Madrigal did not immediately object, on July 21, 2008, the

district court adopted the R&R of the magistrate judge, but it vacated the order

when it became apparent that Bernal-Madrigal never received either the

Government’s response to the motion or the R&R. The court gave Bernal-

Madrigal until August 29, 2008, to file objections.

      Bernal-Madrigal filed a list of objections with a signed certificate of service

on August 29, 2008, but the objections were not filed by the district court until

September 2. His objections included arguing the district court had jurisdiction to

consider his arguments regarding the violations of the plea bargain. He also

asserted the magistrate judge erred by not construing the following oral agreements

to be part of the plea bargain: (1) an agreement to get the Colombian government

to return his property and (2) an agreement to convince the Mexican government to

drop charges against him–the latter raised for the first time. Further, he argued the

magistrate judge clearly erred by ignoring his claim the Government had to file for

his S-visa on his behalf. Finally, he argued the magistrate judge failed to conduct

an evidentiary hearing. He did not address the sentence reduction.

      Notwithstanding the fact objections were filed, the district court issued a

ruling adopting the R&R on September 16, 2008, stating that no objections were




                                          4
filed. On September 19, 2008, Bernal-Madrigal filed a notice of appeal in this

Court.

         Three days later, on September 22, Bernal-Madrigal filed a self-styled “Rule

59(e) motion” in the district court to alter, amend, or correct the adoption of the

R&R. The district court ruled that because he had already filed a notice of appeal

with this Court, his Rule 59(e) motion was moot and it lacked jurisdiction. Bernal-

Madrigal did not appeal this decision, but on October 7, 2008, he filed a motion

asking the district court to certify that it would be inclined to grant his “Rule 59(e)”

motion and vacate its order denying the motion to compel, so the district court

could consider de novo the objections to the R&R. The Government filed a motion

essentially agreeing with Bernal-Madrigal, and suggesting the district court should

issue a supplemental order clarifying the grounds on which it denied the motion to

compel.

         On November 21, 2008, the district court ordered the Government to report

on the status of applying for an S-visa on Bernal-Madrigal’s behalf. The

Government responded, stating it had not yet filed an application because Bernal-

Madrigal was still in prison. The Government explained that in two previous

cases, the Drug Enforcement Agency (DEA) filed a Request for Deferred Action

for Deportation with Immigration and Customs Enforcement (ICE) shortly before a



                                           5
prisoner was scheduled for release, which would delay removal for one year and

allow officials to file the S-visa application during this time period.

      On December 23, 2008, the district court denied the motion for certification,

on the grounds that it recognized its error in failing to consider the objections. It

stated that by issuing the show cause order to the Government regarding the S-visa,

it cured that defect. It stated it was satisfied with the Government’s response, and

since Bernal-Madrigal was not scheduled for release until April 17, 2009, the

Government still had an opportunity to comply. The court stated that in all other

respects, it found the objections meritless.

                                    II. ANALYSIS

A. Failure to consider objections

      Bernal-Madrigal first asserts the district court erred in failing to consider his

objections to the magistrate judge’s R&R. He contends the district court erred by

treating his objections to the July 2008 magistrate’s R&R as untimely. Bernal-

Madrigal asserts he filed the objections on August 29, within the time limit ordered

by the court, and the court incorrectly docketed them as being filed on September

2.

      The Government concedes that the objections should have been considered

timely. The Government asserts, however, that although the district court had no



                                           6
jurisdiction to consider the Rule 59(e) motion, the district court was able to

conduct a de novo review of Bernal-Madrigal’s objections in his request for

certification pursuant to the procedure discussed in United States v. Ellsworth, 814

F.2d 613, 614 (11th Cir. 1987). Therefore, it argues there is no need to remand the

case for de novo review of Bernal-Madrigal’s objections when the district court has

already done so. See In re Holywell Corp., 967 F.2d 568, 571 (11th Cir. 1992)

(stating objections to a magistrate judge’s findings are reviewed by the district

court de novo).

      After the filing of an appeal, a defendant who files a motion with the Court

of Appeals which should have been filed with the district court must file that

motion with the district court. Ellsworth, 814 F.2d at 614. The district court may

then: (1) deny the motion on the merits, or (2) certify the motion should be granted,

which will permit this Court to consider remanding the case for further

proceedings. Id.

      In denying the motion for certification, the district court explained that, to

help the matter on appeal, it issued a Show Cause Order to the Government

regarding the S-visa. On review, it found the Government had not failed to comply

with its promise, since it did not need to begin the process until April 17, 2009, at

the earliest. Accordingly, the district court concluded remanding the case would be



                                           7
unnecessary in light of this determination. See id. The district court also stated

Bernal-Madrigal’s other objections were without merit. Thus, any procedural error

that may have been committed by the district court originally was rendered

harmless, given that the district court later considered the objections and found

them meritless.2

B. Violation of terms of 2003 plea agreement

       Bernal-Madrigal also contends that the Government violated the written

terms of the 2003 plea agreement by failing to file an S-visa application on his

behalf with federal immigration authorities and because it did not resolve all

pending drug charges against him in Mexico.

           A determination of whether the government violated a plea agreement is

reviewed de novo. United States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir.

2008), cert. denied, 129 S. Ct. 2034 (2009). “Whether the government violated the

agreement is judged according to the defendant’s reasonable understanding at the

time he entered the plea.” Id. (quotations omitted).

       Contrary to Bernal-Madrigal’s argument, the 2003 plea agreement did not

state that the Government would resolve any charges against Bernal-Madrigal in



       2
         Bernal-Madrigal’s argument that he was denied an opportunity to respond to the Show
Cause Order is waived because he did not raise it until his reply brief. See United States v. Britt,
437 F.3d 1103, 1104 (11th Cir. 2006).

                                                 8
Mexico, but only that, upon his conviction there, it would request that any sentence

imposed be served concurrently with his sentence here. The language is not an

agreement to “resolve all charges” in Mexico. Thus, Bernal-Madrigal cannot show

the Government violated the plea agreement in this respect.

       Additionally, the district court did not err in denying the motion to compel

the Government regarding the S-visa. The Government outlined its usual policy

and stated the DEA typically does not begin the process until an inmate is released,

at which time it files a Request for Deferred Action for Deportation. As Bernal-

Madrigal was not set for release until April 17, 2009, the issue was not yet ripe

when considered by the district court.3

C. Oral promises

       Finally, Bernal-Madrigal contends the Government made oral promises to

provide visas and permanent resident documentation to his family and to persuade

the Colombian government to return his seized property, and these promises

should be binding on the Government.

       “The government is bound by any material promises is makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United



       3
        On August 3, 2009, Bernal-Madrigal filed a letter with the district court, apparently
conceding the S-visa application has since been prepared and submitted to ICE on his behalf.
(CM/ECF, Doc. 2024).

                                                9
States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). In United States v. Al-Arian,

514 F.3d 1184, 1193 (11th Cir.), cert. denied, 129 S. Ct. 288 (2008), this Court

held the inclusion of an integration clause in a written plea agreement made a claim

the defendant could not be compelled to testify in future cases “especially dubious”

where the written plea agreement was silent as to that provision. While parol

language is admissible, it is only to the extent that the written agreement is

ambiguous or government overreaching is alleged. Id. at 1191.

       The district court did not err in concluding any oral promises were not part

of the plea agreement. The written plea agreement contained an integration clause,

limiting it to the written terms only. At the plea hearing, Bernal-Madrigal agreed

the plea agreement represented, in its entirety, his understanding with the

government, and that no one made any different promises to induce his entry of the

guilty plea. Thus, any oral promises that might have been made up to that point

could not reasonably have been understood to be part of the plea.

      Bernal-Madrigal alleged in his motion to compel before the district court

that the oral promises occurred “subsequent to” the written plea agreement.

However, because a plea agreement only consists of those material promises which

induce the defendant to plead guilty, these cannot be considered part of the

agreement either. It is axiomatic that a promise made after a person pleads guilty



                                           10
cannot have been relied on in making that decision. Therefore, according to

objective criteria, Bernal-Madrigal cannot establish that any promises made by the

Government outside of the written plea agreement were reasonably understood by

him to constitute part of the plea agreement, or that he relied on any such promises

to plead guilty.

                                III. CONCLUSION

      Any error by the district court in failing to consider Bernal-Madrigal’s

objections to the R&R was rendered harmless given that the district court later

considered the objections. Additionally, Bernal-Madrigal failed to show the

Government violated his written plea agreement or that any oral promises outside

the plea agreement induced him to plead guilty. Accordingly, we affirm.

      AFFIRMED.




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