     Case: 11-10286     Document: 00511708044         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                     No. 11-10286
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RENE GLORIA CRUZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-115-6


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Rene Gloria Cruz appeals his conviction and 240-month sentence for
conspiracy to distribute and possess with intent to distribute more than 500
grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
He argues the district court erred by denying his motion to dismiss the
indictment based on his Sixth Amendment speedy-trial claim, by failing to
exercise its discretion and dismiss the indictment under Rule 48(b)(3) of the
Federal Rules of Criminal Procedure, and by applying the two-level firearm

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10286

enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).            Cruz also argues the
Government wrongfully refused to consent to a conditional plea.
      When “a defendant enters a voluntary and unconditional guilty plea, the
plea has the effect of waiving all nonjurisdictional defects in the prior
proceedings.” United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007). The
waiver applies to alleged speedy trial violations. United States v. Bell, 966 F.2d
914, 915 (5th Cir. 1992). A valid guilty plea also waives any right to object to a
delay in prosecution under Rule 48(b). See United States v. Grayson, 416 F.2d
1073, 1077 (5th Cir. 1969). Cruz recognizes these rules but argues his case
justifies an exception to these rules because only “the legal interpretation” of the
facts related to his speedy trial claim were disputed and “the party necessary to
consent to a conditional plea was the negligent cause of the speedy trial delay.”
      Cruz does not contend that his guilty plea was unknowing or involuntary
or that the district court failed to comply with Rule 11 of the Federal Rules of
Criminal Procedure, nor is there any indication in the record that Cruz’s guilty
plea was unknowing or involuntary. See Boykin v. Alabama, 395 U.S. 238, 244
(1969); FED. R. CRIM. P. 11.
      In any event, although a valid, unconditional plea waives review of claims
of speedy trial violations, a defendant may enter a conditional guilty plea, in
writing and with the consent of the court and government, and preserve the
right to appeal a district court’s adverse ruling on a pretrial motion. See FED. R.
CRIM. P. 11(a)(2); see also United States v. Wise, 179 F.3d 184, 186 (5th Cir.
1999). A defendant has no absolute right to plead conditionally. See Wise, 179
F.3d at 187. “The government and the court are free to reject a conditional plea
for any reason or no reason at all.” Bell, 966 F.2d at 916. Although Cruz
apparently requested that the Government consent to a conditional plea to allow
an appeal of the denial of his motion to dismiss the indictment, the Government
refused. There is no indication in the record that Cruz either raised this issue
before the court or expressed his desire to enter into a conditional plea. Because

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                                   No. 11-10286

the Government could have rejected Cruz’s request without stating any reasons
at all, we need not review Cruz’s arguments about the reason that was given.
      We disagree with Cruz’s assertion that an exception to the general rule is
warranted here. Cruz waived the nonjurisdictional defects he seeks to challenge
by entering a voluntary and unconditional guilty plea. Accordingly, we do not
address Cruz’s arguments on the merits of his claims that the district court
erred in denying the motion to dismiss the indictment based on his Sixth
Amendment speedy-trial claim and in refusing to dismiss the indictment under
Rule 48(b) based on a delay in prosecution, as those claims have been waived.
      As for Cruz’s assertion that the district court erred in applying the
two-level enhancement under § 2D1.1(b)(1), Cruz did not preserve this issue for
appeal. Accordingly, our review of this claim is for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain
error, Cruz must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Section 2D1.1(b)(1) provides that the defendant’s offense level be increased
by two levels “[i]f a dangerous weapon (including a firearm) was possessed.” The
application notes to § 2D1.1 explain that this enhancement “reflects the
increased danger of violence when drug traffickers possess weapons” and that
it “should be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” § 2D1.1 cmt. n.3. The
Government can prove possession by showing either that the defendant
personally possessed the weapon, i.e., “showing a temporal and spatial
relationship of the weapon, the drug trafficking activity, and the defendant” or,
“when another individual involved in the commission of an offense possessed the
weapon, . . . that the defendant could have reasonably foreseen that possession.”

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United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010) (quotation
marks and citation omitted).
      Cruz did not dispute the facts supporting the enhancement during the
sentencing hearing, and the district court expressly adopted the PSR without
objection. Although Cruz contends that the Government failed to prove by a
preponderance of the evidence that he possessed the firearms, the unobjected-to
facts set forth in the PSR were sufficient to show that there was “a temporal and
spatial relationship” between the weapons, the drug trafficking activity, and
Cruz, and that even if Cruz did not personally possess the weapons, he should
have reasonably foreseen the possession of the weapons by a co-conspirator. See
id. Cruz has failed to show that the district court was plainly erroneous in
applying the enhancement.
      The judgment of the district court is AFFIRMED.




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