USA v. Aguirre-Jeronimo et al

AO72A
(Rev. 8/82)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v. CRIMINAL NO. 10-50110-003
JUAN SANCHEZ-SANCHEZ DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On February 27, 2012, the Defendant/Movant Juan Sanchez-Sanchez (hereinafter
“Defendant”) filed a 28 U.S.C. § 2255 motion. (Doc. 174). The Government filed a Response
on April 10, 2012. (Doc. 181). Defendant filed a Reply on April 30, 2012. (Doc. 182). The
matter is before the undersigned for issuance of a Report and Recommendation and is now ripe
for consideration.
Background
On January 13, 2011, Defendant was named in one count of a four-count Second
Superseding Indictment filed in the United States District Court for the Western District of
Arkansas. (Doc. 62). Count One charged Defendant with conspiring to distribute more than 50
grams of a mixture or substance containing methamphetamine, in violation of Title 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A)(viii), and Title 21 U.S.C. § 846.
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On April 12, 2011, a pretrial conference was conducted and the case then proceeded to
trial, with a jury being selected and the trial set to begin the following morning. On the morning
of April 13, 2011, counsel for the Government and the Defendant advised the Court that they had
entered into a Plea Agreement. Pursuant to the written Plea Agreement, Defendant waived
indictment and pled guilty to an Information charging him with conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841 (a) and 846. (Docs. 111, 112, 115). On
August 4, 2011, Defendant was sentenced to 240 months imprisonment, 5 years supervised
release, a $25,000.00 fine, and a $100 special assessment. (Doc. 136).
On August 18, 2011, Defendant filed a Notice of Appeal. (Doc. 142). On appeal,
Defendant’s counsel filed a motion to withdraw and a brief under Anders v. California, 386 U.S.
738 (1967), asserting that Defendant’s plea was not knowing and voluntary. United States v.
Sanchez-Sanchez, 451 F. App'x 614, 615 (8th Cir. 2012) (unpublished opinion). Defendant filed
a pro se supplemental brief, arguing that he was sentenced “on the wrong criminal history
category level” and the “wrong level according to weight.” (Doc. 174, p. 19). The Eighth
Circuit Court of Appeals found that any challenge to the voluntariness of Defendant’s guilty plea
was not cognizable on direct appeal because Defendant did not move to withdraw his plea in the
district court. The Eighth Circuit, having reviewed the record independently under Penson v.
Ohio, 488 U.S. 75 (1988), found no nonfrivoulous issues for appeal. Accordingly defense
counsel was granted leave to withdraw, and the District Court’s judgment was affirmed.
On February 27, 2012, Defendant filed the instant pro se Motion to Vacate under 28
U.S.C. § 2255. (Doc. 174). Defendant appears to raise the following grounds for relief: (1) the
Plea Agreement was involuntary because Defendant does not speak English, and therefore, “did
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not understand what was happening to him;” (2) his appointed counsel was ineffective because
his counsel “failed to bring to the Judge’s attention, the amount of drugs involved in this case,”
resulting in a greater base offense level; and 3) he was entitled to a three-level reduction for
acceptance of responsibility.1
I. Plea Agreement:
Defendant asserts that his plea was not knowing and voluntary because he does not speak
English, and did not understand what was in the Plea Agreement.
To be constitutionally valid, a guilty plea must be knowing, voluntary, and intelligent.
See Parke v. Raley, 506 U.S. 20, 28, 29 (1992) (holding that “guilty plea must be both knowing
and voluntary” and must be a “voluntary and intelligent choice among the alternative courses of
action” available to defendant). In seeking to ensure that the district court accepts only knowing,
voluntary, and intelligent guilty pleas, Rule 11 of the Federal Rules of Criminal Procedure directs
the court to conduct a colloquy with the defendant. See Fed.R.Crim.P. 11(c), (d), (f) (requiring
court to advise defendant of rights he will forfeit by pleading guilty, to question defendant
regarding voluntariness of his decision to plead guilty, and to satisfy itself that there is factual
basis for plea). These protections notwithstanding, the Court has said that “[a] guilty plea is a
solemn act not to be set aside lightly.” United States v. Prior, 107 F.3d 654, 657 (8th Cir.1997).
A review of the transcript of the Change of Plea hearing shows that the Court addressed
Defendant’s language barrier:
In it’s Response, the Government addressed other grounds which it believed Defendant to be asserting. The
1
undersigned construes the above listed to be the grounds actually asserted by Defendant based on a review of his
§2255 Motion, his Reply to the Government’s Response, and his pro se supplemental brief to the Eighth Circuit,
which he referenced in his § 2255 Motion and attached as an exhibit thereto. The undersigned notes that
Defendant also asserts that his criminal history category level should have been a II. Defendant’s sentence was,
in fact, calculated based upon a criminal history category level of II.
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THE COURT: Now, this agreement is written in English, and I believe
we determined that you don’t read English. But has this
agreement been translated or interpreted for you form
English to Spanish?
INTERPRETER: Yes.
THE COURT: Did you have an interpreter help you in discussing it with
Mr. Miller?
INTERPRETER: You?
THE COURT: Well, did you have someone to interpret the agreement
when you discussed it with your attorney, Mr. Miller?
INTERPRETER: Yes.
THE COURT: Okay, I assume that was Ms. Andrade.
INTERPRETER: Yes.
THE COURT: Okay. Now, based upon that, it appears that you signed
it on the last page. Did you, sir?
INTERPRETER: Yes.
THE COURT: Now, did you go over it carefully with Mr. Miller and
with an interpreter before you signed it?
INTERPRETER: Yes.
THE COURT: I want to make sure you understand what’s in this
agreement.
THE DEFENDANT: Si.
THE COURT: Do you believe you do, sir?
INTERPRETER: Yes.
(Doc. 151, p. 3-4). The transcript further reveals that the Court questioned Defendant to ensure
that Defendant understood the impact of pleading guilty:
THE COURT: All right. Let’s review briefly. I’ve asked you a series of
questions here with several purposes in mind. I want to
make sure that you know what you’re doing, that you’re
not impaired or don’t know what you’re doing. I want to
be sure that you are satisfied with the services of Mr.
Miller, and you’ve told me several times that you are. Is
that true?
INTERPRETER: Yes, that’s true.
THE COURT: I wanted to make sure that you understand this agreement
that you’ve made, that it was properly translated for you,
and that nobody forced you to sign it, that you signed it
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voluntarily and acting on the advice of your counsel, and
I am satisfied in all of those areas.
I wanted to be sure you understand the consequences that
would flow from entering a guilty plea, what your
punishment could be and how it would be determined and
by whom, which would, of course, be me. I wanted to be
sure there was a proper basis for this charge against you
and to support any plea of guilty to it that you might
make.
I wanted to be sure you understand that you have the right
to continue with your trial, this one or a trial on this new
charge, plead not guilty and make the government prove
its case. I wanted you to finally understand that if you
plead guilty, it would be the same as if a jury had found
you guilty and there would not be any difference.
We’ve covered other things as well, but before I ask for
your plea now, do you have any question you want to ask
of me about any of these things?
INTERPRETER: Not right now, no.
THE COURT: Okay. Well, this would be the time if you have questions.
INTERPRETER: Yes, I do have knowledge that the drug traffic - -
MR. MILLER: Judge, if it please the Court, I want to cut him off because
I know that this is important information that we will have
a time and a place to discuss this.
THE COURT: All right. This may be something you would want to tell
the probation officer in connection with preparation for
sentencing, but what I want to know is if you have any
confusion or anything you want to ask me about what we
have done here in this hearing. Do you have any
questions at all?
INTERPRETER: No. It’s fine,
THE COURT: I then ask, sir, how do you plead to the charge set out in
the Information, guilty or not guilty?
INTERPRETER: Guilty.
(Doc. 151, p. 19-21). The record revealed that an interpreter translated the Plea Agreement from
English to Spanish, that an interpreter helped Defendant discuss this Plea Agreement with his
counsel, and that an interpreter was present during the Change of Plea Hearing. The Court
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questioned Defendant more than once about his understanding of the Plea Agreement with a
certified interpreter during the Change of Plea Hearing and Defendant repeatedly answered that
he was knowingly and voluntarily entering into the Plea Agreement. United States v. Ceballos,
116 F. App'x 45, 47-48 (8th Cir. 2004); United Stated v. Ruvalcaba, 9 F.3d 41, 42 (8th Cir.
1993) (defendant’s “difficulty with the English language adds nothing to his argument, insofar
as a duly sworn interpreter was provided at both the entry of plea and sentencing hearings”). The
undersigned, therefore, sees no merit to Defendant’s challenge to his guilty plea.
II. Ineffective Assistance of Counsel and Guideline Range:
Defendant asserts that his appointed counsel was ineffective because he “failed to bring
to the Judge’s attention the amount of drugs involved in this case.” The Presentence Investigation
Report (PSR) calculated a base offense level of 38, stating that Defendant was accountable for
2.25 kilograms of actual methamphetamine. (PSR ¶ 45). Defendant argues that his base offense
level should have been a 32 or 33, as the offense conduct involved five pounds of “a mixture
containing a substance of methamphetamine.” (Doc. 174, pgs. 5, 7, 23, 26; Doc. 182, pg. 2).
The Government argues that Defendant agreed in the stipulation of facts paragraph of the Plea
Agreement that the methamphetamine seized in this case was 2.24 kilograms of a mixture that
was 99% pure methamphetamine.
The United States Sentencing Guidelines § 2D1.1(c)(1) provides for a base offense level
of 38 for cases involving 1.5 kilograms or more of methamphetamine (actual). As pointed out
by the Government, the difference between the terms “actual methamphetamine” and
“methamphetamine” is explained in note (B) to the Drug Quantity Table in §2D1.1 of The
United States Sentencing Guidelines:
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The terms “PCP (actual)”, “Amphetamine (actual)”, and “Methamphetamine
(actual)” refer to the weight of the controlled substance, itself, contained in the
mixture or substance. For example, a mixture weighing 10 grams containing
PCP at 50% purity contains 5 grams of PCP (actual). In the case of a mixture or
substance containing PCP, amphetamine, or methamphetamine, use the offense
level determined by the entire weight of the mixture or substance, or the offense
level determined by the weight of the PCP (actual), amphetamine (actual), or
methamphetamine (actual), whichever is greater.
A review of the Plea Agreement revealed that Defendant admitted to arranging the
delivery of five pounds of methamphetamine which was determined to contain 2.24 kilograms
of a mixture that was 99% pure methamphetamine. (Doc. 115, p. 2). Therefore, the use of a
recommended base offense level of 38 was correctly applied in this case.
Defendant also argues that he should have received a three point downward adjustment
for acceptance of responsibility. (Doc. 174, p. 23). The PSR recommended that Defendant
receive no adjustment for acceptance of responsibility, citing Note 2 of §3E1.1. (PSR ¶ 51).2
As indicated in the PSR, Defendant put the Government to the burden of preparing for trial and
did not enter a plea of guilty until after jury selection. (PSR ¶ 42). As further indicated in the
PSR, Defendant never fully admitted his involvement in the drug conspiracy. This conduct is
inconsistent with acceptance of responsibility. See United States v. Jackson, 424 F. App'x 603,
605-06 (8th Cir. 2011) (Defendant did not clearly demonstrate acceptance of responsibility where
he waited until the day of trial to enter a guilty plea and, even after pleading guilty, continued to
maintain his innocence).
Note 2 of §3E1.1 states the following:
2
This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse...
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Additionally, the PSR calculated an upward adjustment of 2 points for obstruction of
justice pursuant to §3C1.1. (PSR ¶ 49). The PSR indicated that during the investigation, a letter3
was recovered wherein Defendant instructed a co-defendant to keep his mouth shut, and that if
this was done, Defendant would take care of the co-defendant’s family by sending money once
Defendant was out of jail. (PSR ¶41). This enhancement further supports the denial of a
reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1 n. 4.
Accordingly, Defendant’s arguments that his counsel was ineffective because his counsel
“failed to bring to the Judge’s attention the amount of drugs involved” and that he was entitled
to a reduction for acceptance of responsibility are meritless.
Conclusion
Based upon the forgoing, the undersigned recommends that the instant motion, filed
under 28 U.S.C. Section 2255, be dismissed with prejudice.
An appeal may not be taken in this matter unless the Court issues a certificate of
appealability, which shall be issued only if "the applicant has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(b) & (c)(2). A "substantial showing" is a
showing that “issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8 Cir.th
1997), cert. denied, 525 U.S. 834 (1998). Based upon the above analysis of Defendant’s § 2255
§3C1.1 states the following:3
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B)
the obstructive conduct related to (I) the defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
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motion, the undersigned does not believe that there is any basis for the issuance of a certificate
of appealability and, therefore, recommends that a certificate of appealability be denied.
The parties have fourteen days from receipt of this report and recommendation in
which to file written objections pursuant to 28 U.S.C. Section 636(b)(1). The failure to file
timely written objections may result in waiver of the right to appeal questions of fact. The
parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
Dated this 2nd day of May, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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