Martel v. United States

• Decision Date: 27 February 2017
• Docket Number: CASE NO. 16-CV-20130-SEITZ,CASE NO. 99-CR-260-SEITZ
• Parties: MANUEL MANNY MARTEL, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

MANUEL MANNY MARTEL, Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 16-CV-20130-SEITZ

CASE NO. 99-CR-260-SEITZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 27, 2017

MAGISTRATE JUDGE P. A. WHITE

REPORT OF MAGISTRATE JUDGE

I. Introduction

This matter is before the Court on the Movant's pro se motion to vacate pursuant to 28 U.S.C. § 2255, attacking his guilty plea and sentence in criminal case number 99-CR-260-SEITZ.

This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B),(C); S.D.Fla. Local Rule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order 2003-19; and Rules 8 and 10 Governing Section 2255 Cases in the United States District Courts.

Before the Court for review are the motion to vacate (Cv-DE# 1), the Government's Response and appendix of exhibits (Cv-DE# 7, 8), the Movant's Reply (Cv-DE# 14), the Presentence Investigation Report ("PSI"), and all pertinent portions of the underlying criminal file.

II. Claims

Construing the pro se Movant's arguments liberally, he appears to raise the following claims in his Section 2255 motion (renumbered):

1. The Movant's plea was unknowing and involuntary because he was unaware that he would not receive credit for the thirty-eight months he was detained in Spain prior to his extradition;

2. Counsel was ineffective for failing to ensure he received credit for the 38 months he served in Spain prior to his extradition; and

3. Counsel was ineffective for failing to inform the Movant that, if he did not file a direct appeal, he would waive his ability to challenge the sentencing error.

III. Procedural History

The relevant procedural history of the underlying criminal case is as follows. The Movant was indicted on April 16, 1999, with: Count (1), possession with intent to distribute a detectable amount of cocaine; Count (2), possession with intent to distribute five or more kilograms of cocaine; and Count (3), possession of a firearm in furtherance of a drug trafficking crime. (Cr-DE# 13). The Movant was placed under pretrial release supervision but he absconded on May 14, 1999. See (Cr-DE# 21). The Court revoked bond, placed the case in fugitive status, and issued an arrest warrant. (Cr-DE# 24, 25, 26).

The Movant was arrested on August 4, 2014, in Spain, and was extradited to the United States on August 8, 2014. See (Cr-DE# 28). On November 7, 2014, he pled guilty to Count (2) in exchange for the Government's dismissal of Counts (1) and (3). (Cr-DE# 46). He agreed in a written plea agreement that the sentenced had not yet been imposed and that the mandatory minimum sentence is ten years' imprisonment with a statutory maximum of life. (Cr-DE# 46 at 2-3). The Government agreed to recommend a three-level reduction for acceptance of responsibility, if applicable. (Cr-DE# 46 at 3). Theparties jointly agreed to recommend findings that: the quantity of controlled substance for which the Movant is accountable is at least five kilograms but less than fifteen kilograms; a two-level increase applies because the Movant possessed a firearm in connection with the drug offense; the Movant obstructed justice by fleeing. (Cr-DE# 46 at 4). The United States agreed not opposed the Movant's request for a downward variance to the statutory minimum mandatory sentence 120 months' imprisonment. (Cr-DE# 46 at 4). Further, pursuant to 18 U.S.C. § 3585, the Government agreed "not oppose the defendant's request that he receive credit for the time he was held in custody while awaiting extradition." (Cr-DE# 46 at 4). The Movant acknowledged that the parties' sentencing recommendation is not binding on the Court. (Cr-DE# 46 at 4). The agreement contains an appellate waiver providing that the Movant will not appeal any sentence imposed unless it exceeds the maximum permitted by statute or is the result of an upward departure from the guidelines range. (Cr-DE# 46 at 5). The plea agreement is supported by a written factual proffer that provides the Government would be able to prove the following beyond a reasonable doubt:

In September 1998, a Confidential Informant ("CI") advised DEA agents that the defendant had been selling cocaine since 1996. In December 1998, at the direction of law enforcement, the CI traveled to the defendant's residence and purchased approximately 250 grams of cocaine and 3.5 grams of cocaine base for $4,500. In March 1999, the CI again traveled to the residence of the defendant and purchased approximately 500 grams of cocaine from the defendant. A search warrant was subsequently obtained for the defendant's residence.

A search of the defendant's residence revealed an additional six and a half (6.5) kilograms of cocaine. Approximately $120,000 was seized from the residence. Also found in the residence, within arm's length was approximately three (3) kilograms of cocaine, additional cash and a firearm. Two safety deposit keys were also discovered in the residence. Search warrants were obtained for thesafe deposit boxes. An additional $260,000 was obtained from the two safe deposit boxes for a total of $389,472.

(Cr-DE# 47) (emphasis added).

The change of plea hearing came before the Court on November 7, 2014, at which the Movant was represented by retained counsel. (Cr-DE# 56). The Movant stated under oath that he had a satisfactory ability to communicate with counsel through an interpreter. (Cr-DE# 56 at 7-8). He fully discussed his case, the evidence, possible defenses, his options, and the consequences of his plea with counsel, and counsel answered all his questions to his satisfaction. (Cr-DE# 56 at 9-12). He discussed the guidelines with counsel and understood that the Court had not yet determined his sentence, which could be higher than the guidelines or counsel's estimate. (Cr-DE# 56 at 13-15). The Movant went over the factual proffer with counsel via an interpreter and discussed it with counsel before signing it. (Cr-DE# 56 at 15-16). The factual proffer, which was translated for the Movant, accurately describes what the Movant did. He had no changes, corrections, or additions. (Cr-DE# 56 at 2, 16). The Movant signed the plea agreement after counsel had the whole document translated into Spanish. (Cr-DE# 56 at 18). Counsel discussed each of the plea agreement's fourteen paragraphs with counsel so he could understand what it meant and the impact on him. (Cr-DE# 56 at 18). Counsel explained everything "in detail" and answered all the Movant's questions. (Cr-DE# 56 at 18).

The Movant agreed that he understood everything up to that point then asked to confer with counsel. They came back on the record and counsel explained that the Movant wanted credit for the time he served in Spain on a Spanish drug conviction which counsel had told him is legally unavailable:

MR. GUARLNICK: ... My client was arrested in Spain for a crime that he committed in Spain. He served the sentence there.

THE COURT: Okay.

MR. GUARLNICK: Then there was a period of time, it was a week or a couple of days before they extradited him to the United States.

THE COURT: Okay.

MR. GUARLNICK: I believe that the client feels that he should get credit for the time served for the term that he served for the crime that he committed in Spain. I have told him that that is not correct.

THE COURT: If you did the time for the crime in Spain, you are back here to face up to the crime that you did here. Two different crimes. Two different punishments. You don't get a two-for that for two different crimes you only have to have a punishment for one. It doesn't work that way.

MR. GUARLNICK: I have explained to him that the Spanish Court has no jurisdiction to tell this Court what to do. He is a United States citizen and he must pay the penalty for the crime in the United States, and Spain has no authority whatsoever to interfere with this Court or that issue.

...

THE COURT: When were you arrested in Spain?

THE DEFENDANT: I was arrested in Spain because of the charges that the United Sates had launched against me. December, 2011 I was arrested because I was wanted by the United States. When I was arrested on June 7, 2011 for the crime I committed in the United States, they found that I had cocaine on my person.

THE COURT: So you also had cocaine on your person in Spain?

THE DEFENDANT: When I was arrested, I had cocaine on me at the time.

THE COURT: Okay. Well, that's a separate crime. Spaindoesn't like to have people possessing cocaine any more than the United States does. Okay?

THE DEFENDANT: Okay.

THE COURT: You are very lucky if your sentence was only three years here.

How much cocaine did you have when you were arrested in Spain?

THE DEFENDANT: It was a little bit. It was a small amount. It was a matter of grams.

THE COURT: So we are not talking kilograms.

MR. GUARLNICK: As I understand it, Your Honor, for the Court's further information, I believe that he served three years in Spain for that charge.

(Cr-DE# 56 at 19-21) (emphasis added).

The Court then asked the Movant whether he understood that he would not receive credit on the present federal charge for the three years he had served in Spain for his Spanish cocaine possession charge:

THE COURT: ... Have you had a chance - do you understand that what Mr. Guarlnick is telling you is accurate?

THE DEFENDANT: I have never maintained anything different. He has always explained this to me. He has always told me this, but he has always explained what he has a just said to you, to me. He has explained it to me.

THE COURT: Unfortunately, that is the reality. He is helping you deal with not a dream, but the reality. It's important that you know what the real facts are, what the reality is so that you can make an informed decision.

THE DEFENDANT: Well, that was the doubt that I had. That was a doubt.

THE COURT: Have we cleared up your doubt?

THE DEFENDANT: Yes, because I saw a document in the computer. There was a motion that I saw in the computer and I based myself on that.

THE COURT: Mr. Martel, you are very lucky in that

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