UNITED STATES OF AMERICA, Plаintiff-Appellee, v. JULIO VALDEZ, Defendant-Appellant.
No. 02-3043
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 2, 2004
2004 FED App. 0094P (6th Cir.) | 04a0094p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Argued: January 27, 2004. Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 00-00756—David A. Katz, District Judge.
Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit Judges.
COUNSEL
ARGUED: Matthew M. Robinson, Cincinnati, Ohio, for Appellant.
OPINION
CLAY, Circuit Judge. After pleading guilty prior to trial in the United States District Court for the Northern District of Ohio to one count of conspiring to possess cocaine with the intent to distribute in violation of
I
On September 5, 2000, a grand jury sitting in the Northern District of Ohio returned a multi-count indictment against numerous Defendants, including Defendant Julio Valdez. The grand jury charged Valdez with conspiracy to distribute and possess with intent to distribute cocaine, cocaine base and marijuana in violation of
In August 2001, Valdez agreed via a written plea agreement to plead guilty to the conspiracy count (Count 1), in exchange for the government‘s agreement to drop Counts 15 and 16 and not to oppose a three-point reduction in the applicable sentencing guideline offense level for Valdez‘s acceptance of responsibility. The agreement stated, in part:
By signing this agreement, the defendant admits 1) that the conspiracy in Count 1 of the indictment existed, and that he knowingly and voluntarily joined the conspiracy, and that the purpose of the conspiracy in Count One was to knowingly and intentionally distribute, and possess with intent to distribute, cocaine.
* * *
The government and the defendant agree and stipulate to the following statement of facts and applicable sentencing guideline factors:
- That the defendant conspired to possess with intent to distribute at least 50 but less than 150 kilograms of cocaine (Base Offense Level 36).
(J.A. 102, ¶¶ 3, 7.) The agreement further noted that Valdez had read the plea agreement, that he had an opportunity to discuss it with his attorney, that he fully understood the agreement and that he was signing the agreement voluntarily.
On August 30, 2001, the district court conducted Valdez‘s plea proceedings pursuant to
The court again asked Valdez whether he had read the plea agreement and gone over it with his attorney, to which Valdez
THE COURT: In paragraph No. 7 [of the plea agreement], it reads: The government and the defendant agree and stipulate to the following statement of facts and applicable guideline sentencing factors: One, that the defendant conspired to possess with intent to distribute at least 50 but less than 150 kilograms of cocaine[,] base offense level 36. Do you understand that?
DEFENDANT VALDEZ: Yes, I do.
THE COURT: And do you agree and stipulate to that paragraph?
DEFENDANT VALDEZ: Yes, I do.
(Tr. at 17.) The court then told Valdez that it could not determine his sentencing guideline range with certainty, but that it expected to impose a sentence between 135 and 181 months, depending upon Valdez‘s criminal history. The court accepted the plea agreement and confirmed that Valdez had not been threatened or induced to plead guilty and had agreed to plead guilty after consultation with his attorney and family.
After accepting the plea agreement, the court asked the prosecutor to articulate the fаctual underpinning for Valdez‘s plea. The prosecutor stated, in relevant part:
With regard to Julio Valdez, the evidence will show that he ... joined the conspiracy in question and he was ... given and sold to him amounts of cocaine as set forth in the factual stipulation, 50 to 150 kilograms and that he received this cocaine from Mr. David Gonzalez and from other couriers who transported it to him in Adrian and Ohio and in Marion, Ohio. Mr. Valdez then resold the cocaine that he received in Adrian, Michigan, and in Marion, Ohio, and also had a set of or a group of pеrsons that he sold to including Doug Ackerman and other persons named and unnamed in the indictment in question.
And the evidence would further show that ... defendant[] knowingly and voluntarily joined the conspiracy knowing full well its objects and its purpose.
(Tr. at 22.) In response to the court‘s inquiries, Valdez stated that he had heard the prosecutor‘s statement and that he neither had any disagreement with it nor wished to add anything to it. Valdez then formally pleaded guilty to Count 1 of the indictment, which the court accepted. A presentence investigation was ordered.
On November 13, 2001, Valdez filed a motion to vacate his plea, claiming that he did not fully understand the crime to which he had pleaded guilty. In a handwritten affidavit, Valdez explained that he did not appreciate the distinction between “grams” of cocaine and the “kilograms” of cocaine referenced in his plea agreement and at the plea proceedings. On December 10, 2001, the court denied Valdez‘s motion to vacate his plea, reasoning that Valdez had not offered an explanation for the 75 days that had elapsed between Valdez‘s plea and his motion to withdraw. The court further noted that the circumstances surrounding the plea did not weigh in favor of a withdrawal because, inter alia, Valdez had stated at the plea hearing that he reads and writes English, that he had read and understood the indictment and that he had discussed the indictment with his attorney. Last, the court noted the “distinct possibility of substantial prejudice to the Government” if a withdrawal were allowed because “the recollections of witnesses may not be as fresh now” and because “substantial time and money would need to be spent in preparаtion for and execution of a trial.”
Valdez‘s sentencing hearing took place on December 21, 2001. Valdez repeated
II
A. Valdez‘s Guilty Plea Was Knowing and Voluntary.
This Court may hear a direct appeal to a plea proceeding conducted pursuant to
“In a simple case the district court may need only to read the indictment and allow the defendant to ask questions about the charge.” Syal, 963 F.2d at 904-05 (citing Van Buren, 804 F.2d at 892). “When the case is more complex, further explanation may be required. In any case the district court must be satisfied, after discussion with the defendant in open court,
Valdez pleaded guilty to violating
Where the crime is easily understood, several courts have held that a reading of the indictment, or even a summary of the charges in the indictment and an admission by the defendant, is sufficient to establish a factual basis under Rule 11.
804 F.2d at 892 (citations omitted).2 Valdez‘s crime was “easily understood.” This Cоurt is not aware of any authority,
nor has Valdez pointed to any, suggesting that a common drug possession and distribution crime becomes complex simply when the amount of drugs is an element of the case. Valdez has provided this Court with no evidence or legal authority to overcome the common sense presumption that a competent layperson who can read and write in English, particularly a layperson who by his own admission is familiar with drug transactions, can understand the significant distinction—both in terms of mass and dollar value—between grams and kilograms оf cocaine.
Since Valdez‘s crime was not complex, his guilty plea complied with
This Court previously has applied Van Buren to similar facts as those presеnted by Valdez and declined to find a reversible Rule 11 violation. See Leachman, 309 F.3d at 384-86 (rejecting request to vacate plea of guilty to violations of
Further, the Supreme Court has observed that as long as a defendant is provided a copy of his indictment prior to pleading guilty (as Valdez was), there is a “presumption that the defendant was informed of the nature of the charge against him.” Bousley, 523 U.S. at 618 (citing Henderson, 426 U.S. at 650 (White, J., concurring)). Relying on the Bousley presumption, the Eighth Circuit Court of Appeals rejected a Rule 11 challenge identical to Valdez‘s—the district court‘s alleged failure to inform the defendant that the government would be required to prоve the quantity of the controlled substances beyond a reasonable doubt. United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). That court was persuaded by the facts that (a) the trial court had advised the defendant of the quantity of controlled substances alleged in the indictment and the sentencing range based on those quantities and (b) the defendant pleaded guilty to those amounts stated in the indictment. Id. at 740. Similarly, in this case, Valdez was advised of the quantity of cocaine to which he pleaded guilty and the sentencing range for such a plea; Valdez then pleaded guilty.
Arguably, the Eighth Circuit‘s Perez is inapposite because it involved a plain error standard of review, whereas here the less rigorous harmless error standard applies due to Valdez‘s attempt to withdraw his guilty plea prior to sentencing. Two panels of the Ninth Circuit Court of Appeals recently reached opposite results on facts similar to Perez primarily because of the different standards of review applicable in those cases. Compare United States v. Villalobos, 333 F.3d 1070, 1074 (9th Cir. 2003) (applying harmless error standard because defendant challenged drug quantity at sentencing hearing; vacating plea of guilty to violations of
If this Court were to follow Ninth Circuit precedent, Valdez would have a strong argument that, notwithstanding his repeated admission to possessing with the intent to distribute kilogram amounts of cocaine, he “could not properly evaluate the risks of entering the plea agreement, and could not intelligently and voluntarily plead guilty,” because the district court did not inform him that the government needed to prove drug quantity beyond a reasonable doubt. Villalobos, 333 F.3d at 1075. But we sit in the Sixth Circuit, not the Ninth Circuit. To vacate Valdez‘s conviction under Ninth Circuit precedent would result in an irreconcilable conflict with the prior rulings of this Court. We therefore hold that the district court complied with
B. The District Court Did Not Abuse Its Discretion in Denying Valdez Permission to Withdraw His Guilty Plea.
The permission to withdraw a guilty plea prior to sentencing is a matter within the broad discretion of the district court. United States v. Goldberg, 862 F.2d 101, 103 (6th Cir. 1988). Accordingly, this Court reviews a district court‘s refusal to permit a defendant to withdraw his or her guilty plea for an abuse of discretion. Id. at 104.
A defendant may withdraw a guilty plea after the district court accepts a plea, but before sentencing, if the defendant can show “a fair and just reason for requesting the withdrawal.”
The district court denied Valdez‘s motion to withdraw his plea, reasoning that (1) Valdez had not offered an explanation for the 75 days that had elapsed between his plea and his motion to withdraw, (2) the circumstances surrounding the plea suggested that Valdez had understood the indictment, which he had discussed with his attorney, and (3) the government might be prejudiced by the stale recollections of
This Court disagrees with the district court‘s third stated reason, because there appeared to be no factual basis for the court to find that a few months’ delay created by Valdez‘s guilty plea and subsequent withdrawal would have prejudiced the government. The government always has to spend time and money trying a case, so this “prejudice” is irrelevant on these facts. There also was no finding in the record that key witnesses were no longer available or that the few months’ delay had hindered their ability to remember key events.
Nevertheless, the Court agrees with the first two reasons stated by the district court. First, Valdez‘s unjustified 75-day delay, alone, supported the court‘s denial of a motion to withdraw. See United States v. Durham, 178 F.3d 796, 798-99 (6th Cir. 1999) (“The strongest factor supporting the district court‘s denial of Durham‘s motion is the length of time between Durham‘s plea and the filing of his motion to withdraw. Durham waited approximately seventy-seven days to file his motion after entering his guilty plea.“); Baez, 87 F.3d at 808 (“The strongest factors supporting the district court‘s ruling are the sixty-seven day delay between the motion and the plea, and Baez‘s failure to justify this extensive delay.“).
Second, the circumstances surrounding Valdez‘s plea strongly suggest that he did appreciate the crime to which he was pleading guilty and the likely sentence range to which he would be subjected. As noted above, Valdez‘s alleged criminal conduct was described at least four times prior to the entry of his guilty plea. On three of those occasions, Valdez affirmatively assented to the description of his conduct, including the quantity of drugs that he allegedly possessed. There is no dispute that Valdez was competent at the time of his plea, that he had not been coerced to pleаd guilty, that he read and understood English and that he had discussed the indictment and the plea with his attorney, who, according to Valdez, had provided him with satisfactory advice. Because Valdez has presented no persuasive reason for such a lengthy delay in bringing his motion to withdraw and because there is no evidence of unusual circumstances surrounding his plea, the Court sees no basis to hold that the district court abused its discretion.
C. Valdez‘s Claim of Ineffective Assistance of Counsel Is Not Ripe for Judicial Review.
Valdez argues that he was denied effective assistance of counsel because his trial attorney failed to make clear that Valdez was pleading guilty to kilogram drug amounts rather than grams. In theory, claims of ineffective assistance of counsel can be raised on direct review. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1696 (2003). Typically, direct review is appropriate where “trial counsel‘s ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal.” Id. Here, Valdez‘s trial counsel‘s alleged ineffectiveness is not aрparent from the record. There is little evidence in the record regarding what advice, if any, Valdez‘s trial counsel provided with regard to drug quantity, only Valdez‘s assertion that he did not understand the distinction between grams and kilograms. Such facts are more appropriately developed at the district court level. See United States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997) (“‘The more preferable route for raising an ineffective assistance of counsel claim is in a post-conviction proceeding under
III
For all the foregoing reasons, the Court AFFIRMS Valdez‘s conviction and sentence.