U.S. v. Monzon
| Decision Date | 18 February 2004 |
| Docket Number | Docket No. 00-1304. |
| Citation | 359 F.3d 110 |
| Parties | UNITED STATES of America, Appellee, v. Judith MONZON, also known as Miti, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
James B. Comey, United States Attorney for the Southern District of New York, New York, New York (Daniel M. Gitner, Andrew J. Ceresney, Assistant United States Attorneys, New York, New York, of counsel), for Appellee.
Donna R. Newman, New York, New York, for Defendant-Appellant.
Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.
Defendant Judith Monzon ("Monzon") appeals from a judgment entered in the United States District Court for the Southern District of New York following her plea of guilty before Denise Cote, Judge, convicting her of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and sentencing her principally to 97 months' imprisonment. Monzon's plea was entered pursuant to an agreement in which she promised, inter alia, not to appeal her sentence if she received a prison term of 121 months or less. Monzon has appealed, contending that her appeal waiver is unenforceable and that she is entitled to be resentenced because she received ineffective assistance of counsel. Following the filing of Monzon's initial brief on appeal asserting these contentions, this Court granted a motion by the government for a remand to the district court to permit development of the record on the ineffective-assistance-of-counsel claim. See United States v. Monzon, No. 00-1304 (2d Cir. Jan. 9, 2001) ("Monzon I"). On remand, following an evidentiary hearing, the district court concluded that the claim was without merit. See United States v. Monzon, No. 99 CR. 157(DLC), 2001 WL 883647, at *15, *18 (S.D.N.Y. Aug.6, 2001) ("Monzon II"). Monzon now renews her contentions that she received constitutionally ineffective assistance and that her waiver of the right to appeal is not enforceable. Finding no merit in any of her arguments, we conclude that the appeal should be dismissed.
The present prosecution arose from an investigation of narcotics trafficking at First Avenue and 13th Street in Manhattan (the "Spot") which resulted in the indictment of Monzon, along with more than a dozen others, for conspiracy from October 1997 to January 26, 1999, to distribute cocaine and cocaine base ("crack"), in violation of 21 U.S.C. § 846. For purposes of the present case, the underlying events described below are no longer in dispute.
During the period of the conspiracy, Monzon's husband Oscar Monzon ("Oscar") was incarcerated in Florida, and Monzon resided in Florida. Prior to Oscar's incarceration, Oscar and Monzon lived in New York, and Oscar operated a drug distribution business at the Spot. Drugs were stored and packaged in their home; Monzon assisted with the packaging. After Oscar and Monzon moved to Florida, drugs were distributed at the Spot by codefendants Adria Rodriguez and Pedro Manuel Quezada, who paid "rent" on the Spot, collected by Monzon. Monzon was arrested following (a) the government's interception of telephone conversations between various members of the conspiracy, including several in which Monzon was mentioned and one in which she participated, (b) a consent search of Monzon's apartment yielding various incriminating items, and (c) postsearch incriminating statements by Monzon as to her knowledge of the provenance of the funds she received from Rodriguez and Quezada.
Monzon moved to suppress the evidence seized in connection with the search of her apartment, contending that she had not consented to the search and that she had made statements only after unsuccessfully requesting to speak with an attorney. An evidentiary hearing was held, at which Monzon and several law enforcement agents testified. The district court denied the motion, finding the testimony of the agents credible and that of Monzon not credible. (See, e.g., Suppression Hearing Transcript, August 17, 1999, at 310-12; id. at 320 ( ).)
Following the denial of her motion to suppress, Monzon entered into an agreement with the government pursuant to which she pleaded guilty ("Plea Agreement" or "Agreement").
A. The Plea Agreement, the Plea, and the Sentence
In the Plea Agreement, the parties stipulated to various facts informing the calculation of Monzon's sentence under the Sentencing Guidelines ("Guidelines"). The Agreement provided, inter alia, that, based on her false testimony at the suppression hearing, Monzon's Guidelines offense level was to be increased by two steps for obstruction of justice and was not to be decreased for acceptance of responsibility. These and other agreed calculations resulted in a Guidelines-recommended imprisonment range of 97-121 months. However, because the minimum prison term prescribed by statute for the crack distribution conspiracy with which Monzon was charged was 10 years, see 21 U.S.C. § 841(b)(1)(A), the range applicable to her would have been 120-121 months, absent relief pursuant to the so-called "safety valve" provisions of 18 U.S.C § 3553(f). The government agreed, inter alia, that since Monzon appeared to satisfy the conditions of § 3553(f), the government would recommend that she be sentenced within the range of 97-121 months without regard to the 120-month statutory minimum.
In the Agreement, Monzon agreed to plead guilty to the conspiracy charge. She also agreed, inter alia, not to appeal her sentence if the court imposed a prison term of 121 months or less:
It is further agreed ... that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range set forth above....
(Plea Agreement dated August 27, 1999, at 4.)
With Monzon's consent, her plea of guilty was entered before a magistrate judge. (See Plea Hearing Transcript ("Plea Tr."), August 27, 1999, at 2-3.) The plea colloquy between the magistrate judge and Monzon included the following:
Q. Do you understand the nature of the charge to which you are entering a plea?
A. Yes.
Q. Do you understand the range of penalties to which you are potentially subjecting yourself by your plea of guilty?
A. Yes.
(Plea Tr. 7.)
Q. I notice that you have signed a plea agreement yourself.
Before you signed it, did you discuss it with your attorney?
A. Yes.
Q. Did he explain to you all of the pertinent terms of the agreement and what they mean?
A. Yes.
Q. I note that as part of the plea agreement, there is a reference to what is called a stipulated guideline range which is described as 97 to 121 months.
Do you understand that the district judge, when she sentences you, might choose, depending on the circumstances, to impose a term of imprisonment either less than this range or more than this range or somewhere within this range?
A. Yes.
Q. Do you also understand that if she imposes a sentence of no more than 121 months, as part of the plea agreement you are giving up your right to appeal from the sentence?
(Plea Tr. 8-9.)
In April 2000, Monzon was sentenced principally to a prison term of 97 months, to be followed by a five-year term of supervised release.
Notwithstanding her agreement not to appeal her sentence if the court imposed a prison term of 121 months or less, Monzon appealed. Represented by new counsel, Monzon argued primarily that her prior attorney, Martin Schmukler, had rendered constitutionally ineffective assistance in his representation of her throughout the district court proceedings, including the negotiation of the Plea Agreement. (See Monzon October 2000 brief on appeal at 26.) She contended, inter alia, that Schmukler failed to conduct an adequate investigation before filing the motion to suppress (see id. at 31-35), failed to prevent her from testifying untruthfully at the suppression hearing (see id. at 33-35), and ineptly acted, or made omissions, in ways that cost her the opportunity to cooperate with the government and thereby obtain more favorable sentencing treatment (see id. at 26, 34-35).
Further, in an affidavit submitted to this Court, Monzon alleged that she had not fully understood the terms of the Plea Agreement (see Affidavit of Judith Monzon dated October 6, 2000 ("October 6, 2000 affidavit"), ¶ 19) and that Schmukler "did not fully explain the prohibition against appealing the court's sentence" (id. ¶ 18). She also alleged that Oscar's family had promised to, and did, pay Schmukler's fee for representing Monzon and that the family insisted to Monzon and Schmukler that Monzon take no action that would incriminate Oscar, the implication of these allegations being that Schmukler was to protect Oscar and hence had a conflict of interest that impaired his representation of Monzon.
Monzon contended that, "since her appeal is based on a claim of ineffective assistance of counsel, her [appeal] waiver is not enforceable." (Monzon October 2000 brief on appeal at 26.) She urged that her arguments be accepted despite the fact that at least part of the basis for her ineffective-assistance-of-counsel claim consisted of matters outside the record.
The government moved for dismissal of the appeal or, alternatively, for a remand to the district court for development of the record and findings of fact with respect to Monzon's ineffective-assistance-of-counsel claim. In Monzon I, a panel of this Court granted the motion to remand.
On remand, the district court conducted a three-day hearing, receiving documentary evidence and the testimony of several witnesses, including Monzon, Schmukler, Schmukler's paralegal...
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