U.S.A v. Quintero

• Decision Date: 25 August 2010
• Docket Number: No. 09-2715,09-2788.,09-2715
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jorge QUINTERO, also known as Samuel Munoz, and Claudia Andrade Martinez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

618 F.3d 746

UNITED STATES of America, Plaintiff-Appellee,v.Jorge QUINTERO, also known as Samuel Munoz, and Claudia Andrade Martinez, Defendants-Appellants.

Nos. 09-2715, 09-2788.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2010.

Decided Aug. 25, 2010.

COPYRIGHT MATERIAL OMITTED

Randall Stewart, Attorney, Joshua P. Kolar, Attorney (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Michael W. Bosch, Attorney (argued), Bosch & Dedelow, Highland, IN, for Defendant-Appellant Jorge Quintero.

Scott L. King, Attorney (argued), Casale, Woodward & Buls, LLP, Merrillville, IN, for Defendant-Appellant Claudia Andrade Martinez.

Before CUDAHY and KANNE, Circuit Judges, and DARRAH, District Judge. ^*

KANNE, Circuit Judge.

This consolidated appeal arises from a foiled bank robbery. The robber, Jorge Quintero, and his getaway driver and girlfriend, Claudia Martinez, challenge their sentences. Quintero pled guilty to all four counts in the indictment against him. Despite his plea agreement, the government declined to recommend a three-point reduction for acceptance of responsibility because he perjured himself and obstructed justice. Quintero argues, however, that a provision in his plea agreement required the government to recommend the reduction. Martinez was indicted on three counts and her case proceeded to trial. She contends that an erroneous jury instruction and an inaccurate computation of the Sentencing Guidelines made her sentence unreasonable. We dismiss Quintero's appeal on waiver grounds and affirm Martinez's conviction and sentence.

I. Background

On March 1, 2008, Martinez drove Quintero to the Fifth Third Bank in Lafayette, Indiana. Martinez claims that Quintero merely requested a ride to the bank to make a withdrawal-which was accurate in one respect, but a substantial understatement of what actually ensued. Instead of parking at the bank like a typical customer, Martinez parked her van in a Target store parking lot adjacent to the bank. Quintero entered the bank wearing a mask, announced that he was robbing the bank, ordered the bank tellers to load money into his bag, and discharged his handgun. After grabbing more than $20,000 in cash, he fled the bank and jumped into the backseat of Martinez's van-carrying his mask, gun, and the bag of cash. Shortly thereafter, Lafayette police officers spotted the vehicle and twice attempted to pull it over before Martinez led the officers on a high-speed chase. After crashing the van, Martinez attempted to flee but was apprehended.

In the van, police officers found the stolen cash, the mask worn during the robbery, and the gun fired in the bank. On the front passenger seat, next to where Martinez had been sitting, the officers also found a second ski mask, a woman's wig in a purse, and a loaded semi-automatic handgun. Martinez was also dressed in an insulated jumpsuit, which appeared highly unusual given the warm weather that day. Nevertheless, Martinez claims that she was no Bonnie to Quintero's Clyde; rather, she asserts that she was completely unaware of the bank robbery until after the fact, and that she fled because Quintero convinced her that the police were pursuing her for cocaine possession.

On July 2, 2008, a grand jury indicted both Quintero and Martinez. The indictment set forth the following counts: (1) bank robbery by force, violence, or intimidation in violation of 18 U.S.C. §§ 2113(a) and 2; (2) discharge of a firearm in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1), 2113(a), and 2; (3) knowing possession of a firearm and ammunition as an illegal alien in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), and 2. The indictment also individually charged Quintero and Martinez, counts 4 and 5 respectively, with unlawful entering and remaining in the United States in violation of 8 U.S.C. § 1325(a). Quintero was indicted on the first four counts; Martinez was indicted on counts one, two, and five.

Quintero entered into a plea agreement on December 9, 2009, agreeing to plead guilty to all counts. The initial pre-sentence investigation report (PSR) provided a base offense level of 20 for counts one and three. The report also added two points because property was taken from a financial institution, one point because the loss exceeded $10,000, and two points because Quintero recklessly created a substantial risk of death or serious bodily injury to another person when he fled from officers. It deducted three points for acceptance of responsibility, resulting in a total offense level of 22 with a criminal history category of I. The report recommended a guidelines range of 41 to 51 months' imprisonment for counts one and three.

The probation office, however, revised the PSR on April 26, 2009, following Martinez's trial. The amended report added two points to Quintero's base offense level for obstruction of justice because Quintero had perjured himself at Martinez's trial, and the revised PSR removed the three-point reduction for acceptance of responsibility. The revised PSR calculated Quintero's total offense level at 27, which resulted in a recommended guidelines range of 70 to 87 months' imprisonment. Count two remained the same.

On June 23, 2009, the district court sentenced Quintero. He was sentenced to 70 months' imprisonment on each of counts one and three, and a term of six months on count four, all to run concurrently. Because count four was a misdemeanor, the court determined that the sentencing guidelines did not apply. See U.S.S.G. § 1B1.9. The court also sentenced Quintero to 120 months' imprisonment on count two, to run consecutively with the sentence imposed for the other counts.

At the conclusion of Martinez's three-day trial and prior to submission of the case to the jury, Martinez objected to the district court's jury instruction regarding accomplice liability. Martinez claimed that the instruction presented an erroneous statement of law and, read in conjunction with all of the final instructions, misled the jury and prejudiced her. The district court overruled the objection. The jury found Martinez guilty of bank robbery and unlawfully remaining in the United States, but not guilty of discharging a firearm.

The probation office then prepared a PSR. Martinez objected to the report's calculation of the guidelines sentence because it included a seven-level enhancement for discharge of a firearm even though she had been acquitted of that charge. The district court sentenced Martinez in accordance with the recommendation in the PSR. The court gave Martinez the lowest-end sentence for count one-121 months-and six months' imprisonment for count four.

II. Analysis

A. Quintero

On appeal, Quintero argues that the government breached the terms of the plea agreement by refusing to recommend a reduction in his sentence for acceptance of responsibility and by recommending a two-point enhancement to the base offense level for obstruction of justice. The district court therefore erred, he argues, by accepting the government's position. He also argues that the district court erred by failing to hold an evidentiary hearing to determine if a substantial breach of his plea agreement occurred. In response, the government argues that Quintero waived his right to appeal in accordance with the plea agreement and, in any event, it did not breach the agreement.

As an initial matter, we address the government's argument that Quintero waived his statutory right to appeal. If we find that the waiver is enforceable, we need not proceed further. We review de novo whether a waiver of appellate review contained in a plea agreement should be enforced as a matter of law. United States v. Chapa, 602 F.3d 865, 868 (7th Cir.2010); Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.1999). “It is well-settled that appellate waivers in plea agreements are generally enforceable.” Chapa, 602 F.3d at 868; United States v. Woods, 581 F.3d 531, 534 (7th Cir.2009). However, this is not an absolute rule Chapa, 602 F.3d at 868 ( citing United States v. Mason, 343 F.3d 893, 894 (7th Cir.2003)); we will enforce a waiver only if the disputed appeal falls within the general ambit of the waiver id. ( citing United States v. Vega, 241 F.3d 910, 912 (7th Cir.2001) (per curiam)).

A plea agreement is a contract and is therefore governed by ordinary contract law principles. United States v. Patterson, 576 F.3d 431, 438 (7th Cir.2009). Accordingly, an appellate waiver is generally valid if it is made knowingly and voluntarily see United States v. Cole, 569 F.3d 774, 776 (7th Cir.2009); United States v. Jemison, 237 F.3d 911, 917 (7th Cir.2001); Jones, 167 F.3d at 1144, and if the language of the waiver is express and unambiguous Chapa, 602 F.3d at 868. On appeal, “[w]e interpret the terms of the agreement according to the parties' reasonable expectations” and construe any ambiguities in the light most favorable to Quintero. Woods, 581 F.3d at 534 ( citing Vega, 241 F.3d at 912).

We turn first to the plain language of the plea agreement. In pertinent part the agreement states:

I [Quintero] understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed.... I expressly waive my right to appeal or to contest my conviction and my sentence ... to any Court on any ground....

(Quintero's App. at 11.) It is clear that Quintero expressly waived his right to appeal, and there is nothing on the face of the agreement that appears ambiguous in such a way as to indicate that Quintero did not understand the terms to which he agreed.

We also look to the plea colloquy to determine if the district court judge properly informed the defendant that the waiver may preclude his right to appeal. Woods, 581 F.3d at 534 ( citing United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997)). In Quintero's case, the...