U.S. v. Pulido

• Decision Date: 20 May 2009
• Docket Number: No. 08-1626.,08-1626.
• Citation: 566 F.3d 52
• Parties: UNITED STATES of America, Appellee, v. Roberto E. PULIDO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

566 F.3d 52

UNITED STATES of America, Appellee, v. Roberto E. PULIDO, Defendant, Appellant.

No. 08-1626.

United States Court of Appeals, First Circuit.

Heard April 7, 2009.

Decided May 20, 2009.

Miriam Conrad, Federal Defender Office, with whom Behzad Mirhashem, were on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant Roberto E. Pulido, a former Boston police officer, pled guilty to drug and firearm charges due to his involvement in two large cocaine deals. This appeal raises several issues concerning his plea and sentencing. After careful consideration, we affirm the district court in all respects.

I. Background

We derive the facts from the trial preceding the plea, the change of plea colloquy, and the Presentence Report ("PSR"). See United States v. Jiminez, 498 F.3d 82, 84 (1st Cir.2007).

In 2003, Pulido, a Boston police officer assigned to the mobile operations patrol, became the subject of a government investigation. During the investigation the government learned, through the work of a cooperating witness, that Pulido was involved in a number of illegal ventures. The ventures included, among other things, buying fraudulently obtained gift cards and providing protection for parties, hosted by another individual, Matthew West, that included drugs and prostitution.

In 2006, the government set up a sting operation in which undercover agents posed as both buyers and sellers of large amounts of cocaine. The agents approached Pulido about providing protection for the shipment of cocaine. Pulido recruited two Boston Police officers, Nelson Carrasquillo and, later, Carlos Pizarro, to participate.

The sting operation resulted in two transactions. The first transaction involved the transfer of approximately 40 kilograms of cocaine from one van to another at a garage leased by Pulido in Jamaica Plain. During this first transaction, the government contends that Pulido possessed a firearm, a fact that Pulido disputes. The second transaction involved the transportation of approximately 100 kilograms of cocaine from western Massachusetts to Boston. During the course of these transactions, Pulido had discussions with the undercover agents about establishing a "long relationship" and providing protection for future shipments of cocaine totaling an additional 1,000 kilograms of cocaine.

Pulido, Pizarro, and Carrasquillo were charged in a four count indictment, with Pulido charged under all four counts. Counts 1, 2, and 4 charged drug offenses under 21 U.S.C. §§ 846 & 841(b)(1)(A). Count 3 charged Pulido with using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Both Pizarro and Carrasquillo pled guilty and received sentences of thirteen years and eighteen years respectively.

Pulido proceeded to trial. On November 8, 2007, after three days of trial, but prior to the introduction of drug quantity evidence,¹ Pulido pled guilty to all four counts, offering an Alford² plea for Count 3. The district court conducted a change of plea colloquy, with Pulido represented by attorney Rudolph Miller.

At the colloquy the district court confirmed that Pulido was entering "a straight up plea" and that Pulido was "not pleading with a plea agreement with the government." Moreover, when the district court asked "[h]as the government said, look, if you plead guilty [the district court] will do this or do that?," Pulido responded "No, no sir. Nothing like that." When the district court asked the government whether there had been a recommended sentence, the government similarly responded "No, your Honor."

During the colloquy, the district court informed Pulido that the highest guideline range he faced with respect to the drug charges if he were awarded a two-level reduction for acceptance of responsibility was 292 to 325 months. However, at various times before and after stating this range, the district court informed Pulido that "I have to add five years on and after on the gun charge. No question about that."

Shortly thereafter, on November 30, 2007, Miller moved to withdraw as counsel, stating that the attorney-client relationship had broken down and was beyond repair. The motion was granted the same day and new counsel was appointed.

About five months later, on April 29, 2008, Pulido filed a motion to withdraw his guilty plea and requested an evidentiary hearing. Pulido claimed that his plea was not knowing and voluntary because (1) his former counsel, Miller, promised Pulido that he had obtained the government's promise to recommend a fifteen year sentence from the government, and (2) he was misinformed by the district court about the mandatory minimum sentence that applied to him. Pulido also moved for leave to file under seal an unredacted motion and affidavit, as well as a letter from his former counsel, Miller, to the Board of Bar Overseers. Pulido asserted that these documents supported his motion to withdraw his guilty plea. The government filed a response stating, in part, that it had no objection to an evidentiary hearing provided that Pulido would take the stand and subject himself to cross-examination. The government also filed, among other things, an affidavit from Miller stating that "[t]here was no negotiated plea deal and hence no recommended sentence."

On May 6, 2008, the district court denied Pulido's motion to withdraw his guilty plea and motions to seal in two separate electronic orders. The district court did not conduct an evidentiary hearing.

On May 14, 2008, Pulido moved to recuse the district court judge. The basis of the motion was a sentencing memorandum that the district court issued a week earlier, on May 7, 2008, in separate case involving Matthew West. The sentencing memorandum stated, in relevant part:

Together with a thoroughly corrupt police officer, Roberto Pulido ("Pulido"), West ran an unlicensed after-hours bar and strip club rife with prostitution. Looking to get the goods on Pulido (and perhaps other officers), the F.B.I. used an undercover informant to solicit West, seeking to purchase cocaine.

United States v. West, 552 F.Supp.2d 74, 83 (D.Mass.2008) (emphasis added). The motion to recuse was denied two days later on May 16, 2008, without a hearing and without a response by the government.

Prior to sentencing, the defense submitted a sentencing memorandum and moved the court to impose a below guidelines sentence of 20 years, or 240 months. In support, the defense submitted, among other things, a written report of a neuropsychological evaluation of Pulido, which concluded that his criminal conduct and moral decline was largely due to his heavy steroid use. The defense also submitted numerous letters supporting Pulido, police department commendations, and information about Pulido's educational, employment, and personal history.

On May 16, 2008, the district court sentenced Pulido. The district court, following the PSR, calculated Pulido's guidelines sentencing range ("GSR") by setting his criminal history category at I and setting a base offense level of 36, based on 140 kilograms of cocaine. After adding a two-level enhancement for his role as an organizer or leader of the criminal activity, see U.S.S.G. § 3B1.1(c), a two level enhancement for his abuse of a position of trust, see U.S.S.G. § 3B1.3, and a two level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, the district court calculated Pulido's base offense level as 38, which resulted in a GSR of 235 to 293 months, with an additional five-year term (60 months) of imprisonment to be imposed consecutively due to the mandatory minimum for the firearm charge. This resulted in a GSR of 295 to 353 months.

The district court adopted the government's recommendation of a sentence of 312 months, or 26 years. The district court, addressing Pulido, then stated that "the conduct related to these crimes, seem[s] utterly without redeeming qualities" and that, although Pulido was "abusing steroids ... that's not an excuse." The district court concluded that "your conduct puts you so far beyond the comradeship of those people who wear that badge." The defense later raised the issue that the drug quantity in this case was not indicative of Pulido's culpability, since he was neither a buyer or seller of the drugs. The district court responded "I take it into account.... But it did not particularly resonate with the Court and played [a] minimal role in my determination of the sentence." Pulido now appeals.

II. Discussion

Pulido presents four issues on appeal. We address each in turn.

A. Denial of Motion to Withdraw Guilty Plea

Pulido first argues that the district court erred when it denied his motion to withdraw his guilty plea without an evidentiary hearing.

Federal Rule of Criminal Procedure 11 provides that a defendant may withdraw his or her guilty plea prior to sentencing for any "fair and just reason." Fed.R.Crim.P. 11(d)(2)(B). We have identified several factors to determine whether there is "fair and just reason" to permit a withdrawal of a guilty plea, "the most significant being whether the plea was voluntary, intelligent and knowing, within the meaning of Rule 11." United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir.1997) (emphasis added). Other factors include (1) the plausibility and weight of the reasons offered by the defendant; (2) the timing of the request; (3) whether there is a serious claim of actual innocence; (4) whether the parties reached (or breached) a plea agreement; and (5) any countervailing prejudice to the government if the defendant is allowed to withdraw his plea. See United States v. Sousa, 468 F.3d 42, 46 (1st Cir.2006); Marrero-Rivera, 124 F.3d at 347.

"Absent errors of law, we review the decision...