United States v. Sanchez-Leon, No. 13–1401.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: MATHESON
• Citation: 764 F.3d 1248
• Docket Number: No. 13–1401.
• Decision Date: 25 August 2014
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abel SANCHEZ–LEON, a/k/a Raul Marez–Ortiz, a/k/a Joel Lopez, Defendant–Appellant.

764 F.3d 1248

UNITED STATES of America, Plaintiff–Appellee,
v.
Abel SANCHEZ–LEON, a/k/a Raul Marez–Ortiz, a/k/a Joel Lopez, Defendant–Appellant.

No. 13–1401.

United States Court of Appeals,
Tenth Circuit.

Aug. 25, 2014.

[764 F.3d 1252]

Martin J. Beres, Clinton Township, MI, appearing for Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, appearing for Appellee.

[764 F.3d 1253]

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Drug Enforcement Agency (“DEA”) officers searched Mr. Sanchez–Leon's home, where they discovered methamphetamine, firearms, and cash. A federal grand jury charged Mr. Sanchez–Leon with violating various federal drug laws. On the first day of trial, he changed his plea to guilty. He later moved to withdraw his guilty plea, which the district court denied. The district court sentenced him to 295 months in prison.

Mr. Sanchez–Leon appeals the district court's denial of his motion to withdraw his guilty plea as not entered knowingly or voluntarily. He also appeals his sentence as both procedurally and substantively unreasonable. He contends the district court committed procedural error by relying on abrogated law. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. BACKGROUND ¹ A. Factual History

During 2011, the Sinaloa drug cartel operated a drug trafficking organization (“DTO”) in the Cortez, Colorado area. Various DTO members sold methamphetamine. The DEA suspected Mr. Sanchez–Leon supplied drugs and sold methamphetamine or directed others to do so.

Between April and July 2011, a DEA confidential source allegedly purchased methamphetamine from Mr. Sanchez–Leon on five separate occasions. As a result, DEA agents secured a warrant and searched his home, discovering “a distribution quantity of methamphetamine, two firearms, ... and in excess of $20,000 U.S. currency.” ROA, Vol. III at 28. The Government bought or seized more than two kilograms of methamphetamine during their investigation of Mr. Sanchez–Leon and seven alleged coconspirators. [ See id. at 28–29.]

B. Procedural History 1. Indictment, Trial, and Plea Deal

In October 2011, a federal grand jury indicted Mr. Sanchez–Leon and seven codefendants for drug possession with intent to distribute, distribution, conspiracy to possess with intent to distribute and to distribute, and aiding and abetting. A superseding indictment added counts of possession with intent to distribute, distribution, aiding and abetting, and possession of a firearm during a drug crime.

Mr. Sanchez–Leon's trial commenced on May 6, 2013. During the lunch break, the Government offered Mr. Sanchez–Leon a plea deal, which he accepted. The district court scheduled a change of plea hearing for later that afternoon to allow the Government time to prepare a written plea agreement.

2. Plea Agreement

The plea agreement called for Mr. Sanchez–Leon to plead guilty to eight counts in the superseding indictment, including various counts of drug possession with intent to distribute, conspiracy, aiding and abetting, and possession of a firearm during a drug crime.² In exchange, the Government

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promised to “stipulate with this defendant that this defendant should be sentenced to the following sentences: 150 months as to Counts One through Six and Fourteen, and a consecutive 5 years as to Count Fourteen of the Superseding Indictment, for a total sentence of 17 1/2 years.” ROA, Vol. I at 69–70. The plea agreement also stated it was made “pursuant to Fed.R.Crim.P. 11(c)(1)(B),” which allows the court to impose a different sentence from what the parties recommended in the plea agreement. ROA, Vol. I at 70.³ The Government also agreed to dismiss the remaining counts.

3. Change of Plea Hearing

At the change of plea hearing, an interpreter assisted Mr. Sanchez–Leon, who has difficulty understanding and speaking English. He pled guilty to eight counts. The district court spoke with Mr. Sanchez–Leon to ensure he understood the charges, had read the indictment, had consulted with defense counsel, and was able to use the translator to communicate. Although the court discovered the plea agreement was written in English only, defense counsel explained he had conveyed its contents to Mr. Sanchez–Leon using the interpreter.

The district court then asked detailed questions to determine whether Mr. Sanchez–Leon understood the plea agreement. ROA, Vol. III at 22–24, 37, 41–43. Based on his responses, the court concluded Mr. Sanchez–Leon's guilty plea was “voluntarily and knowingly made” and that he “understands that the penalty to be imposed ... may exceed the agreement between the parties.” Id. at 45. The court therefore accepted the guilty plea and scheduled a sentencing date.

4. Letters to the Court and the Motion to Withdraw Guilty Plea

Following the change of plea hearing, Mr. Sanchez–Leon wrote two letters complaining about his representation. The first letter was written in English to the Colorado Attorney Regulation Board and complained his attorney had pressured him to accept the plea deal. ROA, Vol. I at 101. The Attorney Regulation Board responded a few weeks later, stating it had investigated the issue and concluded no disciplinary charges against the attorney were necessary. Id. at 99. He then wrote a letter in Spanish to the district judge, who could not read Spanish and never obtained a translation.⁴

[764 F.3d 1255]

Mr. Sanchez–Leon then contacted his defense counsel and directed him to file a motion to withdraw his guilty plea. Counsel did so, explaining the basis for withdrawal in one paragraph:

Mr. Sanchez–Leon has informed counsel he wishes to withdraw his plea of guilty tendered to the Court on May 6, 2013, because he believes he was pressured into pleading by the undersigned counsel plus he misunderstood the terms of the written plea agreement and the Rule 11 advisement was contradictory to the terms of the written plea agreement.

Id. at 105.

5. Hearing on the Motion to Withdraw the Guilty Plea

A few weeks later, the district court heard arguments on the motion. Defense counsel represented Mr. Sanchez–Leon at the hearing. Mr. Sanchez–Leon was present and assisted by an interpreter.

Defense counsel raised whether he had a conflict of interest in continuing to represent Mr. Sanchez–Leon in light of the letter to the Colorado Attorney Regulation Board. The district court stated that although Mr. Sanchez–Leon had criticized the effectiveness of defense counsel, “that doesn't necessarily mean [defense counsel] necessarily ha[s] a conflict in representing [Mr. Sanchez–Leon].” ROA, Vol. III at 49–50.

Because the district court did not have a translation of the second letter, it asked Mr. Sanchez–Leon to explain why he should be able to withdraw the guilty plea. He stated his attorney had pressured him into signing the plea deal, the plea deal caught him by surprise, and that he would rather go back to trial. Id. at 52–53.

The district court heard arguments from counsel and then issued an order from the bench denying Mr. Sanchez–Leon's motion to withdraw his guilty plea. Applying the seven-factor test from United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), the court found three factors weighed in favor of denying the motion to withdraw the guilty plea: (1) Mr. Sanchez–Leon had not asserted any innocence, (2) his guilty plea was given knowingly and voluntarily based on his answers to the questions posed at the change of plea hearing, and (3) defense counsel's performance was not constitutionally ineffective. ROA, Vol. III at 55–57; ⁵see United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.2007) (describing the factors).

6. Sentencinga. PSR and the calculated Guidelines range

The Presentence Investigation Report (“PSR”) calculated a U.S. Sentencing Commission Guidelines range of 295 to 353 months (24.5 to 29.4 years). Neither party objected to the calculations. See ROA, Vol. III at 63–64.⁶

The U.S. Probation Office recommended the court vary downward to 248 months based on: Mr. Sanchez–Leon's lack of prior criminal history; his relatively short participation in the DTO; and because 248 months satisfied 18 U.S.C. § 3553(a).

b. First sentencing hearing

Neither party moved for a downward

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variance.⁷ At the sentencing hearing, Mr. Sanchez–Leon's counsel asked for a 210–month (17.5 years) sentence as agreed upon in the plea agreement. He relied on Mr. Sanchez–Leon's family, employment potential, age, and deportability as reasons to impose 17.5 years. The Government agreed with defense counsel and further argued 17.5 years satisfies the sentencing factors in 18 U.S.C. § 3553(a).

Unconvinced, the district court stated: “[N]obody has filed a motion for a variant sentence, and I don't understand what the basis is for a variant sentence here.” ROA, Vol. III at 67. The Government responded that age and deportation weighed in favor of 17.5 years. Defense counsel responded by again discussing Mr. Sanchez–Leon's family, his age upon release, and his deportability. Defense counsel presented additional factors: Mr. Sanchez–Leon had no criminal history, some of his co-defendants received shorter sentences, and the Guidelines for methamphetamine possession and distribution are harsh. Id. at 69–73.

The district court said that, because the plea agreement was submitted under Federal Rule of Criminal Procedure 11(c)(1)(B), it was not compelled to sentence Mr. Sanchez–Leon to 17.5 years, nor was it convinced a downward variance was warranted. It nonetheless rescheduled the sentencing hearing so the Government could file a motion and further develop its downward variance arguments.

c. Government's motion for downward variance

In its motion for variance, the Government presented arguments linked to the § 3553(a) factors: Mr. Sanchez–Leon (1) was...