FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. NO. 2:13-CR-03670-RB-6)
Devon M. Fooks, Assistant Federal Public Defender,
Albuquerque, New Mexico, for Defendant-Appellant.
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
HARTZ, MURPHY, and HOLMES, Circuit Judges.
MURPHY, Circuit Judge.
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.
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
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
violation of 21 U.S.C. § 846.
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
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 ...