USA v. Nancy Rubio

Filing

OPINION filed [1372279] (Pages: 9) for the Court by Judge Garland [10-3059]

USCA Case #10-3059

Document #1372279

Filed: 05/04/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted December 1, 2011

Decided May 4, 2012

No. 10-3059
UNITED STATES OF AMERICA,
APPELLEE
v.
NANCY CONDE RUBIO,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00248-2)

Anthony D. Martin, appointed by the court, was on the brief
for appellant.
Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese
III, John P. Mannarino, Anthony Asuncion, and Michelle P.
Brown, Assistant U.S. Attorneys, were on the brief for appellee.
Before: GARLAND and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Appellant Nancy Conde Rubio
pled guilty to conspiracy to provide material support to a foreign

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terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1).
She now asks that we vacate her sentence and remand the case
for a new arraignment. Finding no error in the district court’s
acceptance of her plea, we affirm the judgment of conviction.1
I
Rubio was a member of the Fuerzas Armadas
Revolucionarias de Colombia (FARC), a Colombian guerrilla
organization that the State Department has designated as a
foreign terrorist organization pursuant to 8 U.S.C. § 1189. The
FARC regards American citizens as military targets, and has
murdered and taken them hostage in Colombia. Statement of
Facts at 1-2 (J.A. 71-72).2
Rubio was involved with the FARC’s “1st Front,” which
operated in the rural and jungle states of Meta, Guaviare, and
Vaupes. The 1st Front distributed cocaine to narcotics
traffickers in exchange for money, weapons, and equipment. Id.
at 2. Rubio -- at one point the fourth-ranking member of the 1st
Front -- was responsible for the logistical and material supply
network. Id. at 4. One critical piece of that network was the
communications system she put in place, since there was no
telephone service in the remote areas where the 1st Front
operated. Id. at 3. Less than a year after Rubio physically left
the 1st Front -- but while she was still providing assistance with
the communications network -- the Front took three Americans

1

This case was considered on the record from the United States
District Court for the District of Columbia and on the briefs filed by
the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
2

The Statement of Facts was offered by the government to
support the factual basis for the guilty plea. Statement of Facts at 8.
Rubio signed the statement, acknowledging its truthfulness. Id. at 9.

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hostage and held them for two years until they were rescued by
the Colombian military. Gov’t Mem. in Aid of Sentencing at 3
(J.A. 17). According to the government, the network put in
place by Rubio enabled the FARC to maintain custody of the
hostages. Id.
On September 25, 2007, a federal grand jury in the District
of Columbia returned a three-count indictment against Rubio
and several others. Rubio was charged in two of the three
counts. Count 1 charged her (and others) with conspiracy to
provide material support to a designated foreign terrorist
organization, while Count 2 charged her (and others) with the
substantive offense of providing material support, both in
violation of 18 U.S.C. § 2339B(a)(1). Indictment at 2-21 (Supp.
App. Tab 1 at 2-21). The third count, in which Rubio was not
named, charged the defendants with hostage taking, in violation
of 18 U.S.C. § 1203. Id. at 22-23. On January 31, 2008, the
Colombian military arrested Rubio in the city of Cucuta,
pursuant to a provisional arrest warrant lodged by the United
States with the Colombian government. She was extradited to
the United States on September 19, 2009.
In March 2010, Rubio entered into a plea agreement with
the United States Attorney’s Office. Among other things, she
agreed to enter a plea of guilty to Count 1 of the indictment, and
the government agreed to dismiss Count 2. Plea Agreement
¶¶ 1, 11 (J.A. 80, 83). Pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), the parties agreed that the appropriate
sentencing range would be 132 to 144 months. Id. ¶ 7. That
rule provides that a plea agreement may specify that the
government will “agree that a specific sentence . . . is the
appropriate disposition of the case.” FED. R. CRIM. P.
11(c)(1)(C). “[S]uch a recommendation or request binds the
court once the court accepts the plea agreement.” Id.; see
United States v. Jones, 642 F.3d 1151, 1154 n.1 (D.C. Cir.

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2011). Rubio, whose native language is Spanish, was provided
with both English and Spanish versions of the agreement. See
J.A. 80, 86.
Accompanied by counsel and an interpreter, Rubio appeared
in district court on March 17, 2010 to enter her guilty plea. In
taking the plea, the court followed the dictates of Rule 11,
asking questions to ensure (inter alia) that the defendant
understood her rights, the consequences of waiving those rights,
and the nature of the charge to which she was pleading. Tr. of
Plea Hr’g at 3-7 (Mar. 17, 2010) (J.A. 94-98); see FED. R. CRIM.
P. 11(b)(1). The court also ensured that there was a factual basis
for the plea and that it was voluntary. Tr. of Plea Hr’g at 8-9,
11; see FED. R. CRIM. P. 11(b)(2), (3). Finally, the court
explained that, because the plea was of the type specified in
Rule 11(c)(1)(C), if the plea were accepted the court would “be
bound by th[e] guideline range you’ve agreed to of 132 to 144
months in prison,” and would “have to sentence you within that
guideline range.” Tr. of Plea Hr’g at 8; see FED. R. CRIM. P.
11(c)(1)(C), (4). After assuring itself that Rubio understood, the
court accepted her plea. Thereafter, on June 15, 2010, the court
sentenced Rubio to 138 months’ imprisonment, the middle of
the range upon which the parties had agreed. Tr. of Sentencing
at 9 (June 15, 2010) (J.A. 118). On June 24, Rubio filed a notice
of appeal, seeking to have her sentence vacated.
II
Rubio contends that her constitutional rights were violated
because (1) she did not enter into her plea knowingly and
intelligently, and (2) she did not receive Spanish translations of
all the documents in the case. We address these contentions in
order.

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1. Rubio does not argue that, in taking her plea, the district
court failed to comply with any of the requirements of Rule 11.
Rather, she appears to contend that the plea was obtained in
violation of due process. See McCarthy v. United States, 394
U.S. 459, 466 (1969) (holding that, if a plea is not “voluntary
and knowing, it has been obtained in violation of due process
and is therefore void”); see also Bradshaw v. Stumpf, 545 U.S.
175, 183 (2005). Rubio acknowledges that she did not object to
the validity of her plea on this or any other ground in the district
court. Both she and the government believe that, as a
consequence, her appeal can succeed only if she establishes
plain error. Appellant Br. 2-3; Gov’t Br. 9-10. We need not
address the standard of review, however, because there was no
error -- plain or otherwise -- in the proceedings in the district
court. As we discuss below, there is no reason to accept Rubio’s
contention that she did not “knowingly and intelligently” plead
guilty. Appellant Br. 10.
The core of this contention is that “she did not understand
what was taking place at the time of the signing of the plea
agreement or during the Court proceedings” because her first
language is Spanish. Appellant Br. 12. The facts contradict this
claim. The record contains a Spanish translation of the plea
agreement that was given to Rubio, J.A. 86-91, and at the plea
hearing her attorney informed the judge that:
I hired an interpreter/investigator to assist me in this
case, and we went through the English version of the
plea agreement and the statement of facts. I then had
it interpreted into Spanish, and then we went to [the
jail], we reviewed it in Spanish with [Rubio], and so
what she signed today is identical to what she has
agreed to.

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Tr. of Plea Hr’g at 9-10. Moreover, a Spanish-language
interpreter was present at the plea and sentencing hearings and
translated each hearing as it proceeded. Id. at 2; Tr. of
Sentencing at 9. At the plea hearing, the court and counsel again
went over the plea agreement with Rubio. Tr. of Plea Hr’g at 910. She told the court that she understood it, had no questions
about it, and agreed to it. Id. at 11-12.
Rubio also maintains that she did not understand “her right
to correct inaccuracies in the stipulation of facts” presented to
the court. Appellant Br. 10. Again, the record contradicts her.
The district judge conducted a careful colloquy on precisely this
issue. He first asked Rubio whether it was her signature on the
last page of the stipulation. Tr. of Plea Hr’g at 11. After she
told him (through the interpreter) that it was, the judge next
asked whether she had gone “over that carefully” with her
attorney. Id. After she said that she had, the judge then asked
whether the stipulation represented “what really happened,” and
whether she was “in fact, guilty of this offense.” Id. The latter
two questions plainly gave Rubio an opportunity to correct any
inaccuracies. Instead, she answered “yes” to each. Her attorney
then stated, “for the record,” that he had “gone through the
Statement of Facts with her,” it “was interpreted into Spanish for
her, and she reviewed it and we discussed those facts.” Id. at 12.
Rubio further claims that, “right up to the time of
sentencing,” she thought she would receive “a significant
departure from the [sentencing] guidelines” based on her
cooperation. Appellant Br. 13. This claim is simply not
credible. The plea agreement stated that both she and the
government agreed “that the appropriate sentence for the offense
. . . is: a sentencing range of 132 to 144 months.” Plea
Agreement ¶ 7. The Spanish translation of the agreement set out
that range in boldface. J.A. 88. The agreement made clear that,
because this was to be a Rule 11(c)(1)(C) plea, that disposition

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would be included in the court’s judgment if the court accepted
the plea. Plea Agreement ¶ 7. And it expressly stated that “the
Government is not obligated and does not intend to file any
downward departure sentencing motion under Section 5K1.1 of
the Sentencing Guidelines” for assistance to the authorities. Id.
¶ 9. Rubio signed an acknowledgment “that absolutely no
promises, agreements, understandings, or conditions have been
made or entered into in connection with my decision to plead
guilty except those set forth in this plea agreement.” Id. at 6.
At the plea hearing, the court was careful to tell Rubio:
“Ordinarily I have authority to sentence you to something more
severe or less severe than the guidelines, but in this case,
because you have agreed upon a guidelines sentence with the
government, I will have to sentence you within that guideline
range.” Tr. of Plea Hr’g at 8 (emphasis added). She said she
understood. Id. Consistent with this understanding, at the
sentencing hearing Rubio’s counsel asked the court to sentence
her to 132 months, the bottom of the agreed-upon range. Tr. of
Sentencing at 8. The court then asked Rubio whether she had
“anything you’d like to say.” Id. at 9. Had she truly believed,
“up to the time of sentencing,” that she would receive a
significant departure from that range, this would have been the
time to disagree with her counsel’s recommendation for a
sentence within the range. Instead, she said that she had nothing
more to say. Id. Thereafter, the court sentenced her to 138
months, the midpoint of the range to which she had agreed in the
plea agreement. Id.
Finally, we note that Rubio told the court that she had had
adequate time and opportunity to discuss the case with her
attorney, and that she was satisfied with his representation. Tr.
of Plea Hr’g at 3. Nor has she alleged ineffective assistance of
trial counsel on appeal, where she is represented by a different
attorney. Accordingly, under all of the circumstances, there is

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simply no basis for concluding that Rubio’s plea was not made
knowingly and intelligently. Cf. Hill v. Lockhart, 474 U.S. 52,
56 (1985) (holding, with respect to a habeas petition, that “a
defendant who pleads guilty upon the advice of counsel ‘may
only attack the voluntary and intelligent character of the guilty
plea by showing that the advice he received from counsel’” was
not “‘within the range of competence demanded of attorneys in
criminal cases’” (quoting Tollett v. Henderson, 411 U.S. 258,
267 (1973); McMann v. Richardson, 397 U.S. 759, 771 (1970))).
2. Rubio’s second contention is that “Equal Protection” and
“Due Process” required the government to provide her with
Spanish translations of “all charging documents, discovery
[documents] and plea agreements,” as well as of the “presentence report.” Appellant Br. 14, 17. There is no doubt that
this claim, which she also did not raise below, may be reviewed
solely for plain error. See United States v. Simpson, 430 F.3d
1177, 1183 (D.C. Cir. 2005); FED. R. CRIM. P. 52(b). Once
again, the standard of review makes no difference to our
disposition.
This Circuit has held that a criminal defendant does not
have a constitutional right to written translations into her native
language of all court documents. See United States v. Celis, 608
F.3d 818, 840-41 (D.C. Cir. 2010); see also United States v.
Gonzales, 339 F.3d 725, 729 (8th Cir. 2003). Rather, whether
to order translations is entrusted to the district court’s discretion,
based on a consideration of whether the defendant needs them
to understand the evidence and charges against her, and to assist
in her own defense. Celis, 608 F.3d at 841. In this case, both
the plea agreement and the agreed-upon statement of facts were
translated into Spanish. The latter contained a seven-page
“summary of the government’s evidence in support of [the]
defendant’s guilty plea.” Statement of Facts at 8. Rubio stated
that she had discussed it with her attorney, “fully underst[oo]d”

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it, “acknowledge[d] its truthfulness,” and “accept[ed] it without
reservation.” Id. at 9. In addition, at the plea hearing the district
court (through the interpreter) carefully went over the count of
the indictment to which she was pleading guilty, Tr. of Plea
Hr’g 5-7, which she said she understood, id. at 7.
Rubio never asked the district court for translations of any
other documents, and even now does not specify any document
that, if translated, would have affected her ability “to make a
knowing and intelligent decision regarding the plea offer.”
Appellant Br. 18. Accordingly, we conclude that the district
court did not abuse its discretion, let alone commit plain error,
in failing to order sua sponte the translation of additional
documents.
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.

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