United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge
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).
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).
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).
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
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
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).
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).
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).
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).
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).
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).
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).
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).
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).
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