U.S. v. Martinez

• Decision Date: 01 March 1999
• Docket Number: No. 98-1792,98-1792
• Citation: 169 F.3d 1049
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro MARTINEZ, III, a/k/a Pete, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1049

169 F.3d 1049

UNITED STATES of America, Plaintiff-Appellee, v. Pedro MARTINEZ, III, a/k/a Pete, Defendant-Appellant.

No. 98-1792.

United States Court of Appeals Seventh Circuit.

Argued Nov. 12, 1998.

Decided March 1, 1999.

Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN, Kenneth M. Hays (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

Matthew D. Soliday (argued), Valparaiso, IN, for Defendant-Appellant.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Before us is Pedro Martinez, III's direct appeal from the district court's denial of his ineffective assistance of counsel claim and motion to withdraw his guilty plea. He also appeals the court's refusal to grant him a two-level sentence decrease for accepting responsibility for his crime and its imposition of a two-level increase for obstruction of justice under the Sentencing Guidelines. For the reasons discussed below, we affirm the district court's decisions.

FACTS

Although this case's procedural history is intricate, the underlying facts of the charged offense are simple. On April 6, 1995 a Grand Jury indicted Martinez on multiple drug trafficking counts and a single count of Using or Carrying a Weapon During a Narcotics Trafficking Crime in violation of 18 U.S.C. § 924(c) ("the gun charge"). ¹ The indictment charged that the defendant was an integral part of a marijuana conspiracy based in LaPorte, Indiana. Through the efforts of postal inspectors and a number of confidential informers, the federal government became aware of this drug ring, and began surveillance of its members. Based on their observations, the police stopped Martinez's car during one particular sortie between Milwaukee and LaPorte. The police also stopped another car traveling in close proximity, whose passenger's were admittedly working with the defendant. In the second car, a man named Roberto Lozano ² was carrying a .357 Smith & Wesson handgun, allegedly as protection for the drug dealers.

On July 25, 1995, the defendant entered a plea of guilty to a single narcotics count and the gun charge. The district court went through an extensive Rule 11 colloquy with the defendant, who was represented by an attorney named Mario Martinez. More than once during the Rule 11 hearing the defendant expressed apprehensions about pleading guilty to all of the specific elements of the gun charge. On several occasions when Pedro Martinez expressed reluctance to admit predicate facts, Judge Lozano stopped the proceedings, and the defendant and his attorney conversed "off the record." Observing these interactions, Judge Lozano mentioned that he was "concerned" about the hearing, although those concerns were ultimately allayed by the defendant's admissions.

In addition to the difficulties at the Rule 11 hearing, the defendant had other problems with his attorney. The defendant and his mother both claim that attorney Martinez assured them that Pedro's maximum possible sentence was five years, and that he might be able to serve the time in a boot camp. The attorney acknowledged having told his client this, and also admitted that he later realized that such a sentence was far less than the statutorily proscribed minimum. However, he did not remember whether he informed the defendant of his discovery. After entering the guilty plea, Pedro Martinez dismissed his lawyer.

Based on his problems with his attorney, the defendant filed a motion to withdraw his guilty plea. ³ The defendant also argued that he was not legally culpable for the gun charge to which he pled, because he was not "using or carrying" the weapon as § 924(c) requires. The district court granted an evidentiary hearing on the factual issues underpinning the defendant's claims, and gave the defendant wide latitude to call numerous witnesses. The government called Martinez's former lawyer, who was thoroughly cross-examined by Martinez. After listening to extensive testimony, Judge Lozano concluded that the defendant failed to provide good reason to withdraw his guilty plea.

At the sentencing hearing, Judge Lozano imposed a ninety-seven month sentence on the narcotics charge, and a sixty month sentence on the gun count, to be served consecutively for a total of 157 months. This sentence was at the bottom end of the range Martinez could have received. The defendant sought a two-level sentence decrease for his acceptance of responsibility, but the district court, citing inaccuracies and mistruths in Martinez's testimony, refused to grant the decrease.

ANALYSIS

I.

A.

Pedro Martinez's first argument is that he suffered from ineffective assistance of counsel at his guilty plea hearing. Before addressing the merits, the government challenges this court's "jurisdiction" over the defendant's claim because it was not raised below. This court may refuse to hear certain arguments not raised in the district court, see United States v. Garrett, 90 F.3d 210, 214 (7th Cir.1996), but ineffective assistance appeals are not jurisdictionally precluded. United States v. Aquilla, 976 F.2d 1044, 1052-53 (7th Cir.1992). In fact, when we refuse to hear these kinds of appeals, it is not because any jurisdictional defect in an appellant's claim precludes us from doing so.

Indeed, the case the government cites for the proposition that we not might have jurisdiction over this appeal, United States v. Langer, 962 F.2d 592 (7th Cir.1992), never even addresses jurisdiction. Instead, that decision reiterated our longstanding prudential practice of refusing to review some ineffective assistance of counsel claims raised for the first time on direct appeal. Id. at 597, citing United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991). This approach flows from the premise that raising an ineffective assistance of counsel argument on direct appeal is virtually never a winning strategy, because of the absence of a sufficient record. ⁴ Aquilla, 976 F.2d at 1053. We underscore that this approach implicates principles of judicial economy and good decisionmaking, rather than jurisdiction. Thus, there are cases where the defendant is entirely within his rights to wait to raise an ineffective assistance claim until he initiates a habeas proceeding. See Duarte v. United States, 81 F.3d 75, 76-77 (7th Cir.1996) ("all aspects of a claim of ineffective assistance of counsel are open [in a § 2255 motion] whenever any important element of the challenge could not have been presented on the original record.").

On the other hand, there are some cases where it is appropriate, if not mandatory, for a defendant to raise his ineffective assistance of counsel claim on direct appeal rather than waiting for collateral review. We will address the merits of an ineffective assistance claim on direct appeal "when a defendant's attorney is not the same person who represented him at trial [or at the plea hearing] and when the claim rests on the trial record alone," if the record is full enough for us to address the appellant's claim. United States v. Barnes, 83 F.3d 934, 939 (7th Cir.), cert. denied, 519 U.S. 857, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996); see also Guinan v. United States, 6 F.3d 468, 472-73 (7th Cir.1993). Pedro Martinez's claim meets these conditions, and thus, consonant with our approach to these situations, we address his claim of ineffective assistance of counsel.

B.

Counsel in a criminal case must perform according to the standard of a reasonably competent attorney. Barnes, 83 F.3d at 939, citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the plea bargain context a defendant must establish that his counsel's performance was objectively unreasonable and that but for counsel's errors, he would not have pleaded guilty and instead gone to trial. Hill v. Lockhart, 474 U.S. 52, 56-60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The first prong demands that counsel attempt to learn the facts of the case and make a good-faith estimate of a likely sentence. Id. To prove the second prong, a defendant must show that his lawyer's deficiency was a "decisive factor in [his] decision to plead guilty." Barnes, 83 F.3d at 940, citing Hill, 474 U.S. at 59, 106 S.Ct. 366.

The defendant casts myriad aspersions on his attorney's performance, but fails to bolster many of them with meaningful legal and factual arguments. We need not address those arguments which are undeveloped. See United States v. Dawn, 129 F.3d 878, 881 n. 3 (7th Cir.1997).

However, we must resolve the defendant's claim that his attorney promised him a five year sentence (which could be reduced to one year) and that he would get boot camp if he pled guilty. Attorney Martinez disputed this version of events. He testified that he had told the defendant that if he could get him into boot camp he would, not that he made specific promises. Nevertheless, attorney Martinez conceded that he never informed his client that he was not eligible for boot camp and that the gun charge alone carried a five year minimum sentence to be served consecutively to other penalties. Regardless of whose version is right, attorney Martinez did not serve his client well in this regard.

A defense attorney cannot promise his client a particular sentence; all he can do is make a prediction. Here, we must decide whether attorney Martinez's error effectively deprived his client of his Sixth Amendment rights under Hill. 474 U.S. at 59, 106 S.Ct. 366. In this circuit, an attorney's "mere inaccurate prediction of a sentence" does not demonstrate the deficiency component of an ineffective assistance of counsel claim. Barnes, 83 F.3d at 940; see also United States v. Arvanitis, 902 F.2d 489 (7th Cir.1990).

Thus, the question is whether these were "mere inaccurate predictions" or whether they were something more invidious. In Barnes, the defendant's lawyer failed to inform him that if he pled guilty, he would be classified...