U.S. v. Alvarez-Quiroga, ALVAREZ-QUIROG

Citation901 F.2d 1433
Decision Date12 June 1990
Docket NumberNo. 89-1918,ALVAREZ-QUIROG,D,89-1918
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Romanefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Frances C. Hulin, Asst. U.S. Atty., Office of the United States Attorney, Danville, Ill., for U.S.

J. Steven Beckett, Champaign, Ill., for defendant-appellant.

Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The defendant, Roman Alvarez-Quiroga, who entered a guilty plea to an indictment charging him with possession with intent to distribute seventy-two kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A), raises two issues on appeal. First, the defendant asserts that in accepting his guilty plea, the district judge erred by not informing him of the applicable sentencing range for his offense under the Sentencing Guidelines. Second, the defendant claims that the district court should have allowed him to withdraw his guilty plea because it was not knowingly, intelligently, and voluntarily made.

Attorney Steven Helm was initially appointed to represent the defendant. Mr. Helm filed various pretrial motions on behalf of his client, including a motion to quash the arrest and to suppress the seized cocaine evidence. The district court denied these motions and the case proceeded to trial. After jury selection, the defendant The terms of the plea agreement were simply that the defendant would plead guilty to the charged offense without any agreement about the sentence to be imposed. The defendant's wife also would enter an open guilty plea, but to a lesser charge. The district judge conducted a hearing and accepted the defendant's plea. With a little help from roommates at the jail, defendant filed a pro se motion on January 14, 1989, seeking to discharge his attorney, disqualify the interpreter, and withdraw his guilty plea. The district court held a hearing on these motions and denied all of them in a written memorandum. Mr. Helm subsequently withdrew from representation of the defendant, and new counsel, J. Steven Beckett, was appointed. A supplementary motion to withdraw defendant's guilty plea was then filed charging that the defendant's plea was not knowing and voluntary and that the defendant had ineffective assistance from his prior counsel. The district court held another hearing and denied the defendant's second motion to withdraw his guilty plea.

and his wife each advised the court that they wished to change their previously entered pleas of not guilty to guilty in accordance with a plea agreement. The defendant, a Spanish-speaking resident alien from Houston, Texas, was at all times assisted by an interpreter, although the record shows he had an understanding of English.

After a sentencing hearing, the district court sentenced the defendant to 151 months of incarceration with a five-year term of supervised release. This appeal followed.

ANALYSIS
I. Sentencing Guidelines Advice

The defendant argues that before he entered his plea of guilty the court should have advised him of the Sentencing Guidelines base offense level of the offense with which he was charged. The defendant argues that the district court should have warned him that under the Sentencing Guidelines a charge of possession with intent to distribute seventy-two kilograms of cocaine, which was the amount seized in the search of the automobile being driven by defendant, has a base offense level of 36. Guidelines Sec. 2D1.1 Drug Quantity Table. The defendant also alleges that the court should have further admonished him that cross-referencing the defendant's category I criminal history with his offense level of 36 yields a sentencing range of 188 to 255 months imprisonment. Guidelines, ch. V, pt. A. The defendant essentially contends that because the district court did not comply with Federal Rule of Criminal Procedure 11's requirement that the court advise him of the mandatory minimum and maximum penalty for his offense under the Sentencing Guidelines, his plea was invalid and we must therefore vacate his sentence. 1

We need not pursue this issue further, however, because since this case was briefed and argued the Rule 11 issue was fully and carefully considered in United States v. Salva, 894 F.2d 225 (7th Cir.1990). In Salva, we rejected the defendant's suggested broad interpretation of Rule 11 and held that Rule 11 does not require district court judges to predict the applicable sentencing range under the Guidelines for defendants who are entering guilty pleas. Id. at 230.

II. Withdrawal of Guilty Plea

Defendant claims that the district court erred in denying him the right to withdraw his guilty plea under FED.R.CRIM.P. 32(d) because the plea was involuntary and it occurred in the absence of effective assistance of counsel. 2 Defendant also claims that because of his status as a Spanish-speaking resident alien with only two years of formal education, and because of his misunderstandings with his first appointed counsel, his plea was entered out of ignorance, fear, or inadvertence. Defendant cites United States v. Stayton, 408 F.2d 559, 560 (3d Cir.1969), and United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983), as support for his argument that it was error to deny the withdrawal of his plea because such withdrawal requests before sentencing should be construed liberally in favor of the accused. Both the Third and First Circuits apply a more liberal standard of review for plea withdrawals than the dual standards we have traditionally applied. Moreover, Stayton was decided long before the 1983 amendment to Rule 32(d) requiring the defendant to demonstrate a "fair and just reason" for a presentence guilty plea withdrawal. Since the 1983 amendment to Rule 32(d), the Third Circuit has applied a more stringent standard of review. See United States v. Martinez, 785 F.2d 111, 113 (3d Cir.1986) ("We have consistently recognized that a criminal defendant has no absolute right to withdraw a guilty plea under Rule 32(d) and that a trial court's determination on a motion under the Rule will be disturbed only if the court has abused its discretion.") The First Circuit in Kobrosky does characterize the Rule 32(d) standard as "a liberal one," and states that it will review a district court's ruling on a plea withdrawal motion under an abuse of discretion standard.

Rule 32(d) requires that a defendant provide a "fair and just reason" for the withdrawal of a guilty plea. One "fair and just reason" for a plea withdrawal is that the plea was involuntary. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). Nonetheless, a defendant does not have an absolute right to withdraw a guilty plea, and the decision whether to allow a plea withdrawal is within the sound discretion of the district court. United States v. McFarland, 839 F.2d 1239, 1241 (7th Cir.), cert. denied, 486 U.S. 1014, 108 S.Ct. 1750, 100 L.Ed.2d 212 (1988); United States v. Fountain, 777 F.2d 351, 358 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). We will uphold the district court's factual findings on this issue unless they are clearly erroneous. McFarland, 839 F.2d at 1241; United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985).

Defendant alleges that his first attorney met infrequently with him; failed to advise him of the possibility of a conditional plea; neglected to inform him that he could call character witnesses from his home area; and failed to advise him that he could have raised a "scienter" defense, that is, he could have claimed that he did not know he was transporting an illegal substance. Further, defendant claims that he pled guilty out of fear for his family's welfare because of the possibility that his son might be jailed and his wife was facing a substantial prison term on her plea.

We believe that Chief Judge Baker properly denied the defendant's Rule 32 motion. Before concluding that the plea was supported by a factual basis showing guilt and that it had been entered voluntarily and with adequate assistance of counsel, the trial judge conducted as full and careful a hearing as any trial judge could have reasonably done in the circumstances. The record clearly reveals that Judge Baker anticipated correctly that the defendant might later have second thoughts about his guilty plea. The judge's care and thoroughness in the hearing, however, foreclosed any challenge to the voluntariness of the defendant's guilty plea.

The defendant may have had some difficulty with the English language, as he claims, but he conversed with the State Police officers at the time of his arrest, with his counsel, and with the court. The court provided the defendant with a competent interpreter whenever help was needed, but the defendant even complains about his interpreter. The interpreter, Professor Blaylock of the Language Department of the University of Illinois, was fluent in Spanish. Judge Baker found the interpreter to be competent and impartial, and nothing in the record suggests otherwise.

At the time of his arrest on September 27, 1988, the defendant was driving north toward Chicago on Interstate 55 near Pontiac, Illinois. State Police officers stopped the defendant for exceeding the speed limit. 3 The defendant was accompanied by his wife, son, and young daughter. The record of the suppression hearing reveals that when the officers asked if they might search the car, the defendant responded, "Sure, go ahead." The officers examined the car's contents and found nothing of interest, except that the ceiling of the car was suspiciously...

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