United States v. Frederico Angel Villalobos, Aka, Julio Rodriguez-Ramirez

333 F.3d 1070 UNITED STATES of America, Plaintiff-Appellee, v. Frederico Angel VILLALOBOS, aka, Julio Rodriguez-Ramirez, Defendant-Appellant. No. 01-30066. United States Court of Appeals, Ninth Circuit. Submission Deferred June 13, 2002. Submitted March 3, 2003. * Filed June 27, 2003. COPYRIGHT MATERIAL OMITTED Santiago E. Juarez, Espanola, NM, for the defendant-appellant. John McKay, Bruce F. Miyake, United States Attorneys, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CR-95-00771-MJP. Before BROWNING, B. FLETCHER and GOULD, Circuit Judges. Opinion by Judge BROWNING; Dissent by Judge GOULD. OPINION BROWNING, Circuit Judge. 1 Frederico Angel Villalobos 1 pled guilty to one count of conspiracy to distribute heroin and stipulated that between 100-400 grams of heroin were involved. Before sentencing, Villalobos moved to withdraw his plea, arguing that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) had changed the government's burden of proof as to drug quantity and that his pre- Apprendi plea was not knowing,…

Opinion by Judge BROWNING; Dissent by Judge GOULD.

OPINION

Frederico Angel Villalobos 1 pled guilty to one count of conspiracy to distribute heroin and stipulated that between 100-400 grams of heroin were involved. Before sentencing, Villalobos moved to withdraw his plea, arguing that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) had changed the government’s burden of proof as to drug quantity and that his pre-Apprendi plea was not knowing, intelligent and voluntary.

The district court denied the motion and sentenced Villalobos to 60 months. He appeals. We reverse and remand.

1. Facts and Procedural History

Villalobos was indicted on two counts of violating drug laws. Count one charged conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812 , 841(a)(1), 841(b)(1)(A), 2 and 846. Count two alleged possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 812 , 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 . The indictment alleged that each count involved one kilogram or more of heroin.

The plea agreement and plea colloquy focused only on count 1, charging conspiracy to distribute heroin under 21 U.S.C. §§ 841 (a)(1),…

dissenting.

I respectfully dissent, believing that the Supreme Court decision in United States v. Ruiz, 536 U.S. 622 , 122 S.Ct. 2450 , 153 L.Ed.2d 586 (2002), undermines our precedent in United States v. Minore, 292 F.3d 1109 (9th Cir.2002), on which the majority incorrectly relies.

Ruiz involved a plea agreement requiring the defendant to waive her right to receive information from the prosecutors about evidence that could be used to impeach a witness at trial. The defendant argued that such waiver meant that her guilty plea was not “voluntary.” Ruiz held that “impeachment information is special in relation to the fairness of a trial, not in *1077 respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficiently aware’).” Id. at 629 , 122 S.Ct. 2450 (emphasis in original). The Court explained that more information might help the defendant make a “wiser ... decision” about “the likely consequences of a plea,” but “the Constitution does not require the prosecutor to share all useful information with the defendant.” Id. (citing Weatherford v. Bursey, 429 U.S. 545, 559 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977)). The Court added that a waiver is “knowing, intelligent,…