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United States v. Carillo

United States Court of Appeals, Tenth Circuit

June 23, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JORGE CARILLO, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 2:13-CR-03670-RB-6)

          Gordon Devon M. Fooks, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          Marisa A. Ong, Assistant United States Attorney (Damon P. Martinez, United States Attorney, Dean Tuckman, Assistant United States Attorney, Albuquerque, New Mexico, on the brief), for Plaintiff-Appellee.

          Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

          MURPHY, Circuit Judge.

         I. INTRODUCTION

         Jorge Carillo pleaded guilty to, inter alia, conspiring to distribute at least 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. On appeal, he asserts the district court's acceptance of his guilty plea is at odds with Fed. R. Crim. P. 11(b)(1)(G)-(I) and 11(b)(3). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court remands the case to the district court for further proceedings.

         II. FACTUAL BACKGROUND

         A grand jury issued an indictment alleging Carillo, inter alia, conspired with others to distribute at least 100 grams of heroin. The indictment provided:

From on or about June 20, 2013, . . . to on or about October 15, 2013, . . . the defendants, JOVITA BELMONTE-GONZALEZ, . . . CELENA MARQUEZ, ANDY NUÑEZ, KATHYE YOUNG, JEREMY SPARKS, and JORGE CARILLO, unlawfully, knowingly and intentionally . . . conspired . . . with each other and with other persons . . . to commit an offense against the United States . . ., distribution of 100 grams and more of . . . heroin, contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
Overt Acts
In furtherance of the conspiracy . . ., the following overt acts, among others, were committed . . . .
Overt Act One
On June 20, 2013, Jorge Carillo facilitated Celena Marquez purchasing 50 grams of heroin from Jovita Belmonte-Gonzalez for $1400 in Ciudad Juarez, Chihuahua, Mexico, after which Marquez transported the heroin into the United States.
Overt Act Two
On September 19, 2013, through September 21, 2013, Celena Marquez . . . arranged to send Kathye Young to Mexico to purchase 100 grams of heroin from Jovita Belmonte-Gonzalez.
Overt Act Three
On September 21, 2013, Celena Marquez and Jeremy Sparks facilitated Kathye Young purchasing 100 grams of heroin from Jovita Belmonte-Gonzalez in . . . Mexico, and then transporting the heroin into the United States.
Overt Act Four
On September 26, 2013, Andy Nuñez exchanged text messages with Jovita Belmonte-Gonzales in which he arranged for Celena Marquez to purchase 100 grams of heroin from Jovita Belmonte-Gonzalez in . . . Mexico, the following day.
Overt Act Five
On September 27, 2013, Celena Marquez sent Kathye Young and another female to . . . Mexico, to purchase 100 grams of heroin from Jovita Belmonte-Gonzalez.
Overt Act Six
On October 15, 2013, Celena Marquez arranged for Kathye Young to purchase 100 grams of heroin from Jovita Belmonte-Gonzalez in . . . Mexico.
Overt Act Seven
On October 15, 2013, Andy Nuñez drove Kathye Young to the international border, where Kathye Young crossed into Mexico and purchased 100 grams of heroin from Jovita Belmonte-Gonzalez before transporting the heroin into the United States.

         In violation of 21 U.S.C. § 846.

         The individuals charged in the superseding indictment were identified in an investigation that resulted in twenty-nine people being charged, in four different indictments, with conspiring to import and distribute Mexican heroin within the United States.

         At his initial appearance, see Fed. R. Crim. P. 5, Carillo acknowledged he received a copy of the indictment and understood the charges against him. He was correctly advised he faced a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of forty years on the conspiracy charge. He specifically stated he understood the applicable minimum and maximum penalties. Thereafter, Carillo and his attorney "discussed pleading guilty with and without a plea agreement." After confirming the government would not enter into an ...


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