Gallo-Vasquez v. U.S.

• Decision Date: 01 April 2005
• Docket Number: No. 03-3385.,03-3385.
• Citation: 402 F.3d 793
• Parties: Carlos GALLO-VASQUEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.3d 793

Carlos GALLO-VASQUEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 03-3385.

United States Court of Appeals, Seventh Circuit.

Argued January 20, 2005.

Decided April 1, 2005.

Gregory P. Ripple (argued), Barnes & Thornburg, South Bend, IN, for Petitioner-Appellant.

Scott Drury (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before FLAUM, Chief Judge, and BAUER and KANNE, Circuit Judges.

FLAUM, Chief Judge.

Carlos Gallo-Vasquez moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his counsel at trial and on direct appeal provided him with ineffective assistance. The district court dismissed the motion without holding a hearing or requiring the government to respond. Gallo-Vasquez appeals. Because the record conclusively shows that petitioner is not entitled to relief, we affirm.

I. Background

In August 2000, United States customs officials intercepted a truck crossing the U.S.-Mexican border carrying 5,000 pounds of marijuana hidden inside sacks of charcoal. After determining that the truck was destined for Chicago, the customs officials handed the vehicle over to the Chicago police. On August 9, 2000, an undercover Chicago police officer drove the truck to the suspected delivery address. The officer found no one at that location to receive the delivery and, posing as an ordinary driver, called around to figure out where to take the truck. The undercover officer was instructed to drive the truck to a warehouse on Chicago's south side. He arrived and parked the truck at a loading dock towards the rear of the warehouse. Six or seven men began unloading the sacks from the truck, while another man, later identified as Gallo-Vasquez, monitored their work. Once the unloading was complete, the undercover officer asked one of the men to sign the bill of lading. He directed the officer to Gallo-Vasquez, who signed the form using a false name. After the undercover officer left, law enforcement agents raided the warehouse and arrested Gallo-Vasquez and seven others.

Petitioner was indicted for possession with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). Trial was scheduled to begin on March 5, 2001. On February 24, 2001, Gallo-Vasquez, who is a Mexican citizen, sent a letter written in his native language of Spanish to the presiding judge asking that his attorney be removed. The certified English translation of the letter alleges an ongoing disagreement between Gallo-Vasquez and his counsel. The letter describes in detail a series of steps that Gallo-Vasquez purportedly asked his attorney to take in preparation for the trial. For example, petitioner asserted in the letter that he had requested that his counsel subpoena five specified potential witnesses, believing that they might have evidence that would prove his innocence. The correspondence to the court relates that petitioner described to his counsel why the witnesses' testimony would be crucial to his defense. According to the letter, however, counsel refused to subpoena the individuals and explained to petitioner that the information would be irrelevant to the issues likely to be contested if the case went to trial. Gallo-Vasquez complained in the letter that counsel was not doing anything to prove his innocence, alleging that his attorney instead "has always told me to plead guilty to accept a deal, that that [sic] is the best, because otherwise, I am going to get 10 years in jail." The letter expresses repeatedly petitioner's alarm at and disagreement with counsel's advice: "I consider myself a defenseless person.... he has failed to do all the things I have requested of him.... I consider myself under the pressure of my attorney to plead guilty.... A TRIAL CANNOT BE WON WITHOUT ANY BASIS to prove my innocence." It concludes, "[f]or all these reasons... I am addressing you, Honorable Judge Castillo, to request that my attorney be removed, and if it is necessary for me to plead guilty in order to prove my innocence and so that you can hear me out, I will do so."

On February 27, 2001, Gallo-Vasquez moved pro se to dismiss his counsel. The motion requested that the district court "ALLOW [Gallo-Vasquez] A [N] ATTORNEY WHO WILL PROTECT HIS 6th AMENDMENT RIGHT" and "ENABLE [him] SOME FAIR PLAY AT TRIAL." Neither the letter nor the motion mention any communication problems between Gallo-Vasquez and his counsel.

On February 28, 2001, the district court held a status hearing during which the parties addressed the letter and the motion. Defense counsel denied the accusations in the letter, stated that he was ready to go to trial, but moved to withdraw at Gallo-Vasquez's request. Petitioner advised the district court through an interpreter that he believed that his counsel was not adequately prepared. The court denied the motion to withdraw, finding that "Mr. Gallo-Vasquez is manipulating the criminal justice system by sending this letter to me at the last minute.... [T]his is a deliberate attempt on the part of a defendant who is concerned about proceeding to trial for a lot of different reasons."

The case went to trial as scheduled. The government presented evidence that Gallo-Vasquez managed the drug shipment, including testimony from one of the men arrested at the warehouse that petitioner had directed their unloading of the truck. With the aid of an interpreter, Gallo-Vasquez testified on his own behalf, asserting that he had flown from Mexico to Chicago intending to visit a friend, that an unknown man approached him just outside O'Hare airport and offered him a job moving sacks of charcoal, and that he accepted the job without knowing that the sacks contained drugs. During his testimony, Gallo-Vasquez admitted that he spoke some English and described an exchange where he asked someone, in English, for directions. At a few points, petitioner restated his answers in English when the interpreter had difficulty translating his responses. The jury found him guilty.

Petitioner moved for a new trial. Counsel advised that Gallo-Vasquez spoke enough English that an interpreter would not be necessary for the hearing on the motion. The hearing proceeded without an interpreter and without objection from Gallo-Vasquez. The motion for a new trial was denied.

Prior to sentencing, the United States Probation Office prepared a presentence report recommending, among other things, that Gallo-Vasquez receive a three-level upward adjustment for his supervisory role in the offense. See United States Sentencing Guideline ("U.S.S.G") § 3B1.1(b). Gallo-Vasquez filed an objection to the recommendation and moved the court to depart downward because of his status as a deportable alien. The government filed a memorandum in support of the upward adjustment, but in opposition to the downward departure. At the sentencing hearing, the court heard additional argument on these points, found the upward adjustment warranted, and, over the prosecution's objection, granted a four-level downward departure based on petitioner's status as a deportable alien. The court sentenced Gallo-Vasquez to 135 months of imprisonment and entered its final judgment on June 26, 2001.

On June 28, 2001, Gallo-Vasquez's trial counsel filed a notice of appeal. On July 23, 2001, the government cross-appealed. Petitioner's trial counsel withdrew and was replaced by an assistant federal public defender. On direct appeal, defendant's new counsel argued that the district court had erred by imposing the supervisory-role enhancement. The crux of the argument was that there had been insufficient evidence that five or more other people were involved in the offense. See U.S.S.G. § 3B1.1(b) (applicable only where defendant managed or supervised five or more participants in the crime). We affirmed the enhancement, concluding that there was ample evidence justifying the district court's finding on this point. United States v. Gallo-Vasquez, 284 F.3d 780, 783-84 (7th Cir.2002).

The government contended in its cross-appeal that the district court abused its discretion in granting the downward departure based on petitioner's status as a deportable alien. We noted that "a `defendant's status as a deportable alien is relevant only insofar as it may lead to conditions of confinement, or other incidents of punishment, that are substantially more onerous than the framers of the guidelines contemplated in fixing the punishment range for the defendant's offense.'" Id. at 784 (quoting United States v. Guzman, 236 F.3d 830, 834 (7th Cir.2001)). Because the district court had not articulated specifically why Gallo-Vasquez's status met this test, we reversed and remanded with instructions that it reconsider the issue and make additional findings if it again decided to depart. Id. at 785. On remand, the district court found that the downward departure was not justified and resentenced Gallo-Vasquez to 210 months of imprisonment.

On July 14, 2003, Gallo-Vasquez filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The motion contends that trial counsel provided him with ineffective assistance by: (i) convincing Gallo-Vasquez unwisely to reject a plea agreement allegedly offered by the government; and (ii) failing to bring an interpreter to any of their out-of-court meetings, despite Gallo-Vasquez's purported inability to speak more than a few words of English. The motion also asserts that petitioner's counsel (both trial and appellate) rendered ineffective assistance by filing a meritless appeal that opened the door to a sentence enhancement on remand. The motion did not attach any affidavits or other documentary support aside from a photocopy of one page of the district court's docket sheet displaying the name of Gallo-Vasquez's trial counsel. The district court dismissed the motion without holding a hearing or requiring the...