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Maldonado-Guillen v. United States

United States District Court, W.D. North Carolina, Statesville Division

March 5, 2018



          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         In February 2011, Petitioner Fortino Maldonado-Guillen, a Mexican national living in North Carolina, began obtaining cocaine from a source in Virginia. (Crim. No. 5:14-cr-72-RLV-DSC-9, Doc. No. 309 at p. 2 & ¶ 107: PSR; Doc. No. 189 at 2: Factual Basis). Petitioner's nephew, David Maldonado (David), would take the cocaine from his uncle's residence, redistribute it, and then pay his uncle for the drugs. (Id., Doc. No. 189 at 2). According to an unindicted co-conspirator, David delivered 30-40 kilograms of cocaine to him in Greenville, South Carolina. (Id.). Petitioner and David were both involved in a ten-kilogram cocaine transaction with another unindicted co-conspirator. (Id. at 3). Petitioner also received other distributions of cocaine. (Id. at 11, 13-14, 18). From May through July 2011, Petitioner supplied David with 60-70 kilograms of cocaine, which David then sold to Germaine Woodley, James Davis, and another customer. (Id.). David collected payment for the drugs and returned it to Petitioner. (Id. at 4).

         David was arrested following an attempt to collect payment for cocaine that he had previously delivered. (Id.). This caused the Virginia source of supply to dry up, so David and his wife, Rosy, found another source of drugs, this time in Mexico. (Id.). The two made multiple trips to Texas to obtain the drugs and also hired drivers to do the same, transporting large quantities of cash and cocaine in the process. (Id. at 4-26). On several occasions, Petitioner would retrieve quantities of cocaine, or David would deliver the drugs to him. (Id. at 6). From June through September 2013, Petitioner regularly took two to three kilograms of cocaine from each of David and Rosy's trips. (Id. at 8).

         In September 2014, one of David's hired drivers was stopped, and law enforcement officers searched his car. (Id. at 26). The car was carrying nine kilograms of cocaine in a secret compartment, which the officers did not find. (Id.). Due to concerns about surveillance, the cocaine sat in the car until the source of supply began pressuring Rosy to sell it. (Id. at 27). David went to Petitioner's house to discuss the situation with him. (Id. (citing GPS information and Title III intercepts)). Eventually, Petitioner drove David to the residence where the car with the concealed drugs was located, and David drove the car to Petitioner's home. (Id. at 28 (citing GPS evidence and Title III intercepts)). Once there, David removed the drugs from the secret compartment and gave three kilograms of the cocaine to Petitioner. (Id.).

         On October 14, 2014, Petitioner met David at a gas station in Mooresville, North Carolina, to give him the proceeds from the sale of the three kilograms of cocaine. (Id. at 30). Petitioner had hidden the $85, 000 in proceeds in a bucket of joint compound. (Id. (citing a telephone intercept). Petitioner later drove David to retrieve a vehicle in which David could hide the drug proceeds. (Id. at 33). After David returned to his home with the vehicle, he discovered that it had a tracking device on it, so he hid the money on his property and drove the car to a hotel and later back to his hired driver's residence. (Id.). Petitioner picked David up from that residence and drove David to Petitioner's house. (Id. at 34). After David discovered a tracking device on his own BMW, he and Rosy made plans to leave the area. (Id.). They were arrested before they could flee. (Id.).

         In November 2014, a grand jury indicted Petitioner and 12 other co-defendants. (Id., Doc. No. 59: Indictment). The grand jury charged Petitioner with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846 (Count One), and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count Two). Although this Court appointed counsel to represent Petitioner, appointed counsel withdrew after Petitioner retained Cynthia Everson and Richard Diener to act as co-counsel. (Id., Doc. Nos. 82, 85-86; Doc. Entry of Jan. 16, 2015).

         In July 2015, Petitioner agreed to plead guilty to Counts One and Two. (Id., Doc. No. 188 at ¶ 1: Plea Agrmt.). As part of the plea agreement, Petitioner stipulated that he had read and understood the factual basis and that it could be used without objection to determine his sentence. (Id. at ¶ 13). The factual basis stated that 450 kilograms of cocaine, which included both cocaine and the equivalent quantity from cocaine proceeds, was reasonably foreseeable to him. (Id., Doc. No. 189 at 35: Factual Basis). Petitioner agreed that he understood that Count One had a minimum term of 10 years of imprisonment and a maximum term of life and that Count Two carried a maximum term of 20 years of imprisonment. (Id., Doc. No. 188 at ¶ 3). The parties agreed to recommend that the amount of cocaine involved in the offense was 450 kilograms, that Petitioner's guilty plea was timely made, that either party could seek a departure or variance from the guidelines range, and that the career offender enhancement might apply. (Id. at ¶ 6).

         Pursuant to the plea agreement, Petitioner waived the right to challenge his conviction or sentence on direct appeal or in any post-conviction proceeding, except as to claims of ineffective assistance or prosecutorial misconduct. (Id. at ¶ 18). He also agreed that pleading guilty might impact his immigration status and that he wanted “to plead guilty regardless, even if the consequence [was] the defendant's automatic removal from the United States.” (Id. at ¶ 21). The plea agreement stated that no other “agreements, representations, or understandings” had been made between the parties. (Id. at ¶ 27).

         At the plea hearing, the magistrate judge explained the charges and applicable penalties to Petitioner. (Id., Doc. No. 425 at 4-7: Plea Tr.). Petitioner testified that he understood. (Id. at 7). Petitioner affirmed that he had been over the plea agreement with his attorney and understood and agreed to its terms and that he was guilty of the charges against him. (Id. at 11, 14). Petitioner also testified that he had read, understood, and agreed with the terms of the factual basis. (Id. at 15). The magistrate judge specifically questioned Petitioner about the immigration consequences of his plea, inquiring whether he understood that his guilty plea “could result in deportation from the country?” (Id. at 7-8). Petitioner answered, “Yes.” (Id. at 8). Petitioner agreed that he understood that he could not withdraw his guilty plea if the sentence imposed was more severe than he expected. (Id. at 9). He testified that no one had threatened, intimidated, or forced him to plead guilty, and that no outside promises of leniency or a light sentence had been made to induce his guilty plea. (Id. at 15-16). Finally, Petitioner stated that he had had sufficient time to discuss any possible defenses with his attorney, that he was satisfied with her services, and that he “thank[ed] her very much for her help.” (Id. at 16). The magistrate judge found that Petitioner's guilty plea was made knowingly and voluntarily and accepted it. (Id. at 18).

         In October 2015, Petitioner wrote a letter to the Court requesting appointment of counsel because he could no longer afford to pay Everson as his attorney. (Id., Doc. No. 259). Everson responded, stating that she had offered to continue to represent Petitioner even though he could not afford to pay her, requesting only that he pay for or provide an interpreter. (Id., Doc. No. 264). After a hearing, new counsel, Haakon Thorsen, was appointed to represent Petitioner in November 2015. (Doc. Entries of Oct. 30, 2015, and Nov. 12, 2015).

         In early 2016, the probation officer issued a presentence report (PSR), recommending that Petitioner's base offense level was 40 based on the quantity of drugs involved in the offense, as well as his maintaining a premises for the purpose of manufacturing or distributing a controlled substance, and that he should receive a two-level enhancement for his money-laundering conviction. (Id., Doc. No. 297 at ¶¶ 80-81). Allowing a three-level reduction for acceptance of responsibility, his total offense level was 39. (Id. at ¶¶ 88-90). The probation officer determined that Petitioner's criminal history category was II and that his advisory guidelines range was 292 to 365 months of imprisonment. (Id. at ¶¶ 100-02, 120).

         Petitioner objected to the PSR, arguing that the two-level enhancement for maintaining a premises should not apply, that his criminal history computation substantially overstated the seriousness of his criminal history and the likelihood that he would commit additional crimes, and that he should be given the benefit of the safety valve. (Id., Doc. No. 307: Objection to PSR).

         In February 2016, Thorsen requested a hearing on the status of counsel and the status of Petitioner's guilty plea. (Id., Doc. No. 322). Counsel stated that Petitioner was claiming that he had been “tricked” into pleading guilty and was disavowing the factual basis. (Id. at 2). However, Petitioner had not asked counsel to move to withdraw his guilty plea. (Id.). This Court held a hearing and determined that Petitioner was claiming that Thorsen was not spending enough time with him going over the evidence. (Id., Doc. No. 323 at 1). Thorsen indicated that he had made three or four trips to meet with Petitioner at the Caldwell County Jail, that he had reviewed the evidence with him, and that he had filed objections to the PSR. (Id. at 1). This Court denied Petitioner's request to remove Thorsen as counsel, finding that he had not established good cause to appoint new counsel. (Id. at 2).

         In March 2016, Petitioner filed a motion to withdraw his guilty plea. (Id., Doc. No. 331). Thorsen indicated that he had reviewed the discovery and had advised Petitioner that if he proceeded to trial, he would be convicted. (Id. at 2). Petitioner indicated that his prior attorneys also had advised him of this. (Id.). Petitioner asserted that Everson told him that he would get a 6- or 8-year sentence if he pleaded guilty, but that if he went to trial, his sentence would be at least 30 years. (Id. at 2; Doc. No. 333-1 at 1). Petitioner stated that he was not guilty of the crimes to which he had pleaded guilty, that Everson had told him how to answer the questions at the plea hearing, that some of his answers at the hearing were not true, that he had not seen or discussed the factual basis before his plea hearing, and that if he had known that his sentence would be so long, he would have gone to trial. (Id., Doc. No. 331 at 2; Doc. No. 331-1 at 1-2).

         In April 2016, this Court held a sentencing hearing. (Id., Doc. No. 426). At this hearing, Petitioner withdrew his motion to withdraw his plea. (Id. at 3-4). Petitioner told this Court that he understood the charges against him, that he was “fully satisfied” with the services of his attorney, that his guilty plea was made freely and voluntarily, and that he had committed the offenses with which he was charged. (Id. at 2-3). This Court affirmed the acceptance of the guilty plea and found Petitioner guilty of the charges. (Id. at 3). Petitioner argued that he had only stored cocaine at his house for a brief time during the conspiracy, when his nephew was coming to pick up the drugs for distribution. (Id. at 4-5). Based on this, he argued that he should not receive a two-level enhancement for maintaining ...

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