U.S. v. Price, s. 91-1257

Decision Date10 March 1993
Docket NumberNos. 91-1257,91-1579,s. 91-1257
Citation988 F.2d 712
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald M. PRICE, Jr. and Mario A. Tapia, also known as Mike Flores, also known as Mario Alejandro Tapia, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Hilary W. Frooman, Asst. U.S. Atty., Danville, IL (argued), Estaban F. Sanchez, Springfield, IL, for U.S.

Bradford E. Hunt, Alton, IL (argued), for Donald M. Price, Jr.

Joseph R. Lopez, Chicago, IL (argued) for Mario A. Tapia.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

The two defendants-appellants, Mario A. Tapia and Donald Price, along with four others, David G. Sweet, Tommy D. Underwood, Larry J. Blakney, and James Wiseman, were charged with conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both Price and Tapia pled guilty to conspiring to distribute between 400 and 700 kilograms of marijuana. Pursuant to the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), the district court sentenced Tapia to 210 months imprisonment and Price to 57 months imprisonment. Tapia appeals the district court's denial of his motion to withdraw his guilty plea, while Tapia and Price both challenge their sentences. We affirm the district court in all respects.

I. BACKGROUND
A. The Drug Conspiracy

The marijuana smuggling and distribution scheme was launched in 1986 when Tapia began supplying Sweet with marijuana from Mexico which Sweet in turn distributed and sold in Illinois. Sweet distributed the marijuana through Wiseman, a trafficker of illegal drugs based in the Alton, Illinois area. During 1986, Tapia helped supply Sweet with approximately eight to ten marijuana deliveries ranging in amounts from ten to twenty kilograms. During 1987, Tapia, acting as Sweet's partner, supplied Sweet with marijuana in amounts of from three to one hundred pounds. In 1988, they consummated their final deal when Tapia supplied Sweet with 11 pounds of marijuana.

Price's involvement in the conspiracy began in 1986 when he met with Underwood. Price knew that Underwood was Wiseman's cousin and that Wiseman was a marijuana dealer, and he wanted Underwood to arrange for Price to gain access to Wiseman's marijuana. Underwood agreed, and in 1986 he began receiving marijuana from Wiseman and delivering it to Price, accepting payments for the marijuana from Price, and turning the money over to Wiseman. Price then sold the marijuana to his customer Blakney.

In late 1986 or early 1987, Sweet and Underwood began dealing directly with one another, and Underwood commenced making sales directly to Blakney. Although Price had been cut out of the deal, he attempted to buy marijuana for his own "personal use" from Underwood, but was rebuffed. Tapia, who had a falling out with Sweet in 1988, thereafter took advantage of his new connections to sell marijuana directly to Underwood and Wiseman.

In January, 1990, Blakney was arrested on state charges arising from his role in the conspiracy and agreed to cooperate with law enforcement officials. The officers also persuaded Underwood to assist in their investigation. On February 20, 1990, agents of the Illinois State Police taped a conversation between Tapia and Underwood in which Tapia stated he would arrive in St. Louis, Missouri with approximately 50 pounds of marijuana. On March 9, 1990, Tapia, while under surveillance, met Underwood in St. Louis, and drove with him to Alton, Illinois, where, on the following day, Tapia was arrested after delivering a suitcase of marijuana to Underwood.

B. Relevant District Court Proceedings

When Tapia was arrested, he told agents that his name was Mike Flores and also gave them a false social security number. At his initial appearance in court before a magistrate, Tapia once again gave his fictitious name. It took officials a week to determine Tapia's true identity through an FBI fingerprint check.

The week before Tapia was scheduled to go to trial, Tapia attempted to fire his attorney, Michael B. Metnick, because he disagreed with the advice Metnick was giving him during the plea negotiations. (Metnick had advised Tapia to "be realistic" about his chances of avoiding conviction in the face of the overwhelming evidence against him.) Metnick, at Tapia's request, filed a motion to withdraw from the case. At a hearing held August 31, 1990, the district court advised Tapia that it was too late in the proceedings to allow Tapia to discharge his privately retained attorney and thus delay the scheduled trial for three months while retaining substitute counsel and allowing him time for preparation. The district court ruled that unless Tapia could hire an attorney who would be prepared to proceed with trial on the scheduled date, Tapia would have to continue with Metnick as his attorney or represent himself at trial.

A few days later, on September 4, 1990, Tapia, still represented by Metnick, pled guilty to the conspiracy charge. In January, 1991, Tapia again asked Metnick to withdraw as his attorney. At this time, Tapia had retained private substitute counsel, Joseph R. Lopez. At a hearing on January 18, 1991, the district court granted Metnick's motion to withdraw and accepted Lopez as replacement counsel. During that same hearing, the court denied Tapia's motion to withdraw his guilty plea.

II. TAPIA'S APPEAL
A. The Guilty Plea

Tapia attacks the validity of his guilty plea on a variety of grounds. Initially, he claims that Metnick rendered him unconstitutionally ineffective assistance of counsel, and, in a closely related argument, that his decision to plead guilty was made in reliance upon the erroneous advice from his attorney that he would only be sentenced to 120 months imprisonment. Tapia also alleges that the trial court failed to properly explain the constitutional rights he was waiving by pleading guilty and also failed to warn him that he could not later withdraw his guilty plea, all in violation of Fed.R.Crim.P. 11. Finally, Tapia claims that the trial court committed error in accepting his guilty plea before the probation department had completed the defendant's presentence report.

1. Alleged Attorney Incompetence

We begin by addressing Tapia's claim that his attorney Metnick rendered ineffective assistance of counsel in that he failed to discuss with him the defenses that he might raise at trial or the witnesses that might be called in his defense. Tapia also alleges that Metnick did not allow him to see any of the Government agents' reports concerning the case or copies of the grand jury testimony of the witnesses the Government planned to use against him. He claims the only written material he ever saw was the indictment. Tapia argues that these alleged failures on the part of his attorney demonstrate that his representation was unconstitutionally incompetent.

"An accused has a right under the Sixth Amendment to reasonably effective assistance of counsel in deciding to plead guilty." United States v. Ayala-Rivera, 954 F.2d 1275, 1279 (7th Cir.1992); see also Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992). We review Tapia's ineffective assistance claim under a two-part test. Toro, 940 F.2d at 1067; Chichakly v. United States, 926 F.2d 624, 627 (7th Cir.1991). First, Tapia must establish that his counsel's conduct was "below an objective standard of reasonableness." Toro, 940 F.2d at 1067 (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). "Our review of counsel's performance must be highly deferential, and we must avoid the temptation to second-guess counsel." Id. Second, Tapia must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

Tapia did not present to the trial court his arguments concerning his attorney's alleged incompetence as a claim of ineffective assistance of counsel. 1 Because the determination of whether or not counsel's performance was constitutionally deficient is a fact-intensive inquiry, we will ordinarily not consider an ineffective assistance claim not previously presented to the trial court. Ayala-Rivera, 954 F.2d at 1279. "We make an exception [to this rule] when the issue [of competence] is, as here, sufficiently clearcut." United States v. Langer, 962 F.2d 592, 597 (7th Cir.1992).

The district court record demonstrates conclusively that Tapia's allegations about Metnick's competence are transparently baseless. During the August 31, 1990 hearing dealing with Metnick's motion to withdraw, Tapia stated that he had examined police reports about his case and had discussed the reports with Metnick and his associate in person as well as in telephone conversations. This is in contradiction to Tapia's assertion on appeal that the only written material Metnick allowed him to see was the indictment. Other statements and admissions by Tapia demonstrate that Metnick acted diligently. At the January 18, 1991 hearing to withdraw his guilty plea, Tapia admitted that as of August 31, 1990, he was aware that the Government had made a tape recording of his telephone call to Underwood arranging a marijuana sale, and that he in fact had listened to the recording. At the August 31st, 1990 hearing, Tapia also conceded that in preparation for trial he had consulted with Metnick or a representative of his office roughly twenty times during the five months since his arrest. Although Tapia was being held in Chicago, and Metnick's office was located in Springfield, Illinois, he had met personally with Metnick or someone from his office five times during that five-month period. Tapia admitted that each time he met with Metnick or his associate they discussed the facts of his...

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