901 F.2d 1433 (7th Cir. 1990), 89-1918, United States v. Alvarez-Quiroga

Docket Nº:89-1918.
Citation:901 F.2d 1433
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roman ALVAREZ-QUIROGA, Defendant-Appellant.
Case Date:May 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1433

901 F.2d 1433 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Roman ALVAREZ-QUIROGA, Defendant-Appellant.

No. 89-1918.

United States Court of Appeals, Seventh Circuit

May 10, 1990

Submitted Feb. 15, 1990.

As Amended June 12, 1990.

Page 1434

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

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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.

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.

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

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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...

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