United States v. Cobos
| Decision Date | 26 January 2023 |
| Docket Number | CR 21-1394 RB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SALVADOR ESTEVAN COBOS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant Salvador Cobos's Amended Motion to Withdraw Guilty Plea (Doc. 93) Objections to Presentence Investigation Report (Doc. 95), and pro se Motion to Proceed (Doc. 110). The Court held a hearing on January 24, 2023. (See Doc. 111.) For the reasons discussed in this Opinion, the Court will deny the motion to withdraw the guilty plea, grant in part the objections, and deny the motion to proceed.
“On June 8, 2021, officers with the Roswell, New Mexico Police Department and the Chaves County Drug Task Force received information of a location of Salvador Estevan Cobos, who had two outstanding felony warrants.” (Doc. 82 ¶ 9.) The Presentence Investigation Report (PSR) states that officers began surveillance of the location and saw Cobos exit and walk toward a vehicle. (Id.) Two officers approached in a vehicle. (Id.) When Cobos saw the officers, he “pulled a handgun from his waistband, pointed it at [the] officers, and ran to the front of the vehicle, taking a position of cover behind the engine compartment.” (Id.) The “[o]fficers positioned themselves behind the open doors of their own vehicle and [instructed] Cobos to drop the gun.” (Id.) Cobos ignored the command until additional officers arrived. (See id.) He then “threw his gun underneath the vehicle, placed his hands on his head, and he was taken into custody.” (Id.) Officers recovered the firearm, a Kel-Tec .380 caliber, semi-automatic handgun manufactured in Florida. (Id. ¶ 10.)
On September 22, 2021, Cobos was indicted on one count of Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. (Doc. 23.) The Court set the matter for trial and then moved the trial setting back twice on Cobos's motions to continue. (See Docs. 27; 32; 35; 39-40.) Six days before trial was set to begin, Cobos filed a Notice of Intention to Enter a Guilty Plea. (Docs. 74-75.)
United States Chief Magistrate Judge Gregory B. Wormuth held a change of plea hearing on March 17, 2022. (Doc. 81.) Cobos pled guilty pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(B) plea agreement. (See Docs. 80; 91 at 9, 11.) Judge Wormuth found that Cobos's “plea [was] knowing and voluntary and supported by sufficient facts.” (Doc. 91 at 19-20.)
The United States Probation Office (USPO) filed Cobos's PSR on May 13, 2022. (Doc. 82.) On May 27, 2022, defense counsel Andre Poissant and Amanda Skinner filed a motion to withdraw as counsel, citing a conflict of interest between counsel and Cobos that “prevents any attorney in the office of the Federal Public Defender from representing [Cobos].” (Doc. 84 at 1.) The Court granted the motion and appointed Mario Esparza. (Docs. 85; 87.) On September 1, 2022, Cobos moved to withdraw his guilty plea. (Doc. 92.) He filed an amended motion on September 2, 2022. (Doc. 93.) The Government responded on September 16, 2022. (Doc. 94.) Cobos did not file a reply brief.
Cobos filed objections to the PSR on October 3, 2022. (Doc. 95.) The Government responded on October 6. (Doc. 97.) Esparza filed a motion to withdraw as counsel the same day, citing irreconcilable differences. (Doc. 98.) The Court conducted an abbreviated hearing on November 3, 2022. (See Doc. 106.) At the hearing, the Court heard briefly from the attorneys and then granted Esparza's motion to withdraw. (See id.) The Court appointed current defense attorney Brock Benjamin. (Doc. 108.)
Cobos filed a pro se motion on January 19, 2023. (Doc. 110.) Cobos reiterates his desire to withdraw his guilty plea. (Id. at 1.) He also submits “newly discovered evidence” and asks the Court to compel his attorney to submit the evidence in his defense. (Id. at 1-2.) Finally, he alludes to a desire to replace his appointed counsel. (Id. at 4-6.)
“The PSR placed [Cobos] in criminal history category II with a total offense level of 27, resulting in an advisory sentencing guideline range of 78-97 months.” (Doc. 94 at 3 (citing Doc. 82 ¶¶ 27, 36, 61).) Cobos asserts two objections to the PSR. First, he objects to a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which increases the base offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense ....” (See Doc. 95 at 2 (quoting U.S.S.G. § 2K21(b)(6)(B)).) Second, he objects to a six-level enhancement under U.S.S.G. § 3A1.2(c)(1), which increases the base offense level “[i]f, in a manner creating a substantial risk of serious bodily injury, the defendant . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom ....” (See Doc. 95 at 4 (quoting U.S.S.G. § 3A1.2(c)(1)).)
A court may grant a motion to withdraw a guilty plea “if the defendant shows any fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir. 2000) (quoting Fed. R. Crim. P. 32([d])). The defendant carries the burden to show a fair and just reason. See id. To determine whether the defendant meets this burden, the Tenth Circuit has identified seven factors for the Court to consider:
(1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant's assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion would cause a waste of judicial resources.
Id. at 1299-1300 (citing United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993)). Of these factors, three “are the most important . . . and are frequently dispositive”: the defendant's assertion of innocence, the assistance of counsel, and the knowing and voluntary nature of the plea. United States v. Qualls, 741 Fed.Appx. 592, 597 (10th Cir. 2018) (citing United States v. Byrum, 567 F.3d 1255, 1265 (10th Cir. 2009). “[A] court need not address the prejudice to the government, the timing of the defendant's motion, the inconvenience to the court, or the waste of judicial resources factors ‘unless the defendant establishes a fair and just reason for withdrawing his guilty plea' in the first instance.” Byrum, 567 F.3d at 1265 (quoting United States v. Hamilton, 510 F.3d 1209, 1217 (10th Cir. 2007)).
In his Amended Motion to Withdraw Guilty Plea, Cobos offers four conclusory reasons to withdraw his guilty plea, none of which are supported by an affidavit or by the record. (See Doc. 93 at 1-2.) Cobos asserts that his previous defense counsel: (1) estimated his sentencing range at 18-24 months; (2) “was prepared to file timely objections [to the PSR] and a video” but “never did due to the change in counsel”; (3) did not investigate exculpatory evidence; and (4) coerced him into pleading guilty. (See id.) In his more recent pro se motion to proceed, Cobos also submits an affidavit from an eyewitness to the incident who attests that she did not see Cobos with a firearm. (See Doc. 110 at 7-8.) He also states that the lapel cam footage of the incident shows that he had two cell phones in his possession, one in each hand. (Id. at 2.) Considering the relevant factors, the Court finds that Cobos has failed to make the required showing.
Cobos admitted his guilt when he signed the plea agreement and pled guilty on the record. (See Docs. 80; 91 at 18.) Cobos also acknowledged that the United States would have been able to prove facts establishing his guilt had the matter gone to trial. (See Doc. 91 at 18-19.) He has not since asserted his innocence. (See Doc. 93.) Critically, even in his recent pro se motion, he stopped short of asserting his innocence. (See Doc. 110.) Instead, he states that the lapel cam footage shows him with cell phones, and he submits an affidavit of a neighbor who witnessed the event and did not see him holding a firearm. (See id. at 7-8.) He did not submit his own affidavit or affirmatively state his innocence.[1] (See id.) This factor weighs against withdrawal of the plea. See Byrum, 567 F.3d at 1264 ().
Cobos's motion is primarily based on his assertions that his previous attorneys were ineffective. (See Doc. 93 at 1-2.) “When a defendant's challenge to a guilty plea is based on ineffective assistance of counsel, [the Court] appl[ies] the two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Hamilton, 510 F.3d at 1216 (citation omitted). “To prevail under this test, [Cobos] ‘must show both (1) that counsel's performance was deficient and (2) that this deficiency prejudiced [his] defense.'” Id. (quoting United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996)).
Cobos asserts that his prior attorneys' performance was deficient because they estimated his sentencing range at 18-24 months, did not file timely objections to the PSR or a video, failed to investigate exculpatory evidence, and coerced him into pleading guilty. (See Doc. 93 at 1-2.) “[T]o establish that his attorneys' performance was...
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