U.S. v. Marcos-Quiroga

478 F.Supp.2d 1114

UNITED STATES of America, Plaintiff, v. Francisco MARCOS-QUIROGA, Defendant.

No. CR 06-3009-MWB.

United States District Court, N.D. Iowa, Central Division.

March 23, 2007.

COPYRIGHT MATERIAL OMITTED

Robert A. Wichser, Federal Public Defender, Sioux City, IA, for Defendant.

Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER REGARDING DEFEDANT'S

PRO SE

MOTION FOR NEW ATTORNEY, DEFENDANT'S OBJECTION TO GUIDELINE FINDING OF CAREER OFFENER, AND COURT'S

SUA SPONTE

RECONSIDERATION OF DEFEDANT'S MOTION TO WITHDRAW GUILTY PLEA

BENNETT, District Judge.

TABLE OF CONTENTS
I.  INTRODUCTION ................................................................ 1117
      A.  Factual Background ...................................................... 1117
      B.  Procedural Background ................................................... 1119
 II.  LEGAL ANALYSIS .............................................................. 1121
      A.  Objection To Career Offender Status ..................................... 1121
          1.  Arguments of the parties ............................................ 1122
              a.  Marcos-Quiroga's argument ....................................... 1122
              b.  The government's response ....................................... 1122
          2.  Analysis ............................................................ 1123
              a.  Interplay of statutory and guidelines provisions ................ 1123
              b.  The alleged Sixth Amendment violation ........................... 1124
                   i.  Violation of Cunningham v. California ...................... 1124
                  ii.  Violation of the right to jury determination ............... 1125
              c.  Other prohibitions on "double counting" ......................... 1126
          3.  Summary ............................................................. 1128
      B.  Reconsideration Of Motion To Withdraw Guilty Plea ....................... 1128
          1.  Arguments of the parties ............................................ 1128
          2.  Applicable law ...................................................... 1129
              a.  Authority to reconsider ......................................... 1129
              b.  Grounds to withdraw a guilty plea ............................... 1129
          3.  Analysis ............................................................ 1130
              a.  Ripeness of Marcos-Quiroga's ineffective-assistance claim ....... 1130
              b.  Timeliness of Marcos-Quiroga's claim ............................ 1132
              c.  Marco-Quiroga's entitlement to relief ........................... 1133
                    i.  Deficient performance ..................................... 1134
                   ii.  Prejudice ................................................. 1139
                  iii.  Other pertinent considerations ............................ 1142
          4.  Summary ............................................................. 1143
      C.  The Defendant's Motion For New Counsel .................................. 1144
III. CONCLUSION ................................................................... 1145

Is a prior felony drug conviction impermissibly "double counted" when it is used both to enhance a statutory penalty under 21 U.S.C. §§ 841(b)(1)(B) and 851 and to enhance a guidelines sentence for a career offender under U.S.S.G. § 4B1.1? Do counsel's erroneous assurances that a defendant will not be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1 constitute fair and just reasons to allow the defendant to withdraw his guilty plea? The court must address these and other issues in this case in which the defendant contends that he pleaded guilty to a drugtrafficking offense only after his attorney assured him that he did not qualify as a career offender under the guidelines. Although the court initially denied the defendant's motion to withdraw his guilty plea based on bad advice from counsel, the court decided to reconsider that ruling sua sponte in conjunction with the defendant's pro se motion for new counsel and his attorney's objection to the recommendation in his presentence investigation report that he be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.

I. INTRODUCTION

As. Factual Background

According to factual stipulations in defendant Francisco Marcos-Quiroga's plea agreement, on September 21, 2005, police responded to a disturbance at a house in Mason City, Iowa. That house was within 1,000 feet of a playground called East Park. When police arrived, they found Marcos-Quiroga, his girlfriend, and her mother yelling at each other. The police officers persuaded the parties present to "break it up," and those individuals left the premises. As police officers were preparing to leave, however, they were approached by a neighbor who reported that he had seen Marcos-Quiroga drop a bag over the fence into the back yard just before police arrived on the scene. The police officers searched the area indicated by the neighbor and discovered, a bag containing a white, chunky powder, $74 in cash, a green lighter, and a baggie containing some jewelry.

An officer hid near the bag and, a short time later, Marcos-Quiroga approached the back of the house, having walked through the back yards of some of the neighboring houses. His car was later found parked approximately a half block away with the driver's door still open. When Marcos-Quiroga got within fifteen feet of the bag, the hidden officer announced his presence and questioned Marcos-Quiroga about why he was taking such a circuitous route to the house. Marcos-Quiroga offered no explanation. The police officers placed Marcos-Quiroga under arrest and a search incident to arrest revealed $3,501 in cash on him. The white powder in the bag found at the scene later tested positive for 12.59 grams of 100% pure methamphetamine.

Marcos-Quiroga was charged' with distribution of actual (pure) methamphetamine within 1,000 feet of a playground after having previously been convicted of a felony drug-trafficking offense. Marcos-Quiroga eventually agreed to plead guilty pursuant to a "non-cooperation" plea agreement in which he stipulated that he had knowingly possessed the methamphetamine, intending to distribute some or all of it to another person. He also stipulated that he had previously been convicted of a felony drug offense, specifically, delivery of cocaine, in the Iowa District Court for Cerro Gordo County, on or about June 12, 2000. In addition to the prior drug-trafficking conviction, Marcos-Quiroga and his counsel were aware prior to his guilty plea that Marcos-Quiroga had also been convicted in 1997 of a state misdemeanor of fense for assault with intent to commit sexual abuse against a fourteen-year-old girl.

Marcos-Quiroga asserts, and the court finds, that Marcos-Quiroga's counsel specifically represented to him prior to his guilty plea and preparation of the presentence investigation report (PSIR) that he would not qualify as a career offender based on his 1997 misdemeanor assault conviction and his 2000 felony drug conviction and that, consequently, his sentencing range in this case would be no greater than the mandatory minimum sentence of ten years. The court finds, further, that the government's initial determination of the sentencing parameters and its submissions to the probation office agreed with Marcos-Quiroga's counsel's assessment. The court specifically finds that Marcos-Quiroga's decision to plead guilty to the offense charged in this case was based upon his counsel's assurance that he was not a career offender as a result of his previous felony drug conviction in 2000 and the misdemeanor assault conviction in 1997 and that, but for his counsel's advice, Marcos-Quiroga would not have pleaded guilty to the offense charged in this case. Finally, counsel has admitted giving the erroneous advice in question here.¹ B. Procedural Background

Marcos-Quiroga is the sole defendant charged in an Indictment handed down in this case on March 22, 2006. The single charge in the Indictment is knowingly possessing with intent to distribute five grams or more of actual (pure) methamphetamine within 1,000 feet of a playground, having previously been convicted on or about June 12, 2000, of a felony drug offense, specifically, delivery of cocaine, in the Iowa District Court for Cerro Gordo County, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 851, and 860. At an initial appearance and arraignment on March 31, 2006, at which Marcos-Quiroga was represented by an assistant federal defender, Marcos-Quiroga pleaded not guilty, and his trial was set for June 5, 2006. Marcos-Quiroga was detained pending a hearing on the government's motion for detention made at Marcos-Quiroga's initial appearance. After a detention hearing on April 5, 2006, Marcos-Quiroga was detained pending further proceedings. Marcos-Quiroga then sought and received the first continuance of his trial to July 3, 2006, then a further continuance to a date certain of August 7, 2006. Shortly after the second continuance, the assistant federal defender representing Marcos-Quiroga was allowed to withdraw owing to a conflict, and on June 15, 2006, new counsel was appointed to represent Marcos-Quiroga. On June 29, 2006, upon new counsel's motion, Marcos-Quiroga's trial was again continued, this time to October 30, 2006.

By order dated August 31, 2006 (docket no. 23), however, Marcos-Quiroga's trial was stricken and a change-of-plea hearing was scheduled for October 27, 2006. The change-of-plea hearing was subsequently rescheduled for October 25, 2006, and a sentencing hearing was set for January 19, 2007. On October 20, 2006, prior to the change-of-plea hearing, the government filed a Rule 11 letter dated July 19,...