Summary
finding it impermissible to count state conviction for federal sentencing purposes where guilty plea was withdrawn based on invalidity of plea, finding of guilt was withdrawn, and charge was dismissed
Summary of this case from Mateo v. U.S.Opinion
Criminal No. 03-302 (JRT/FLN).
October 18, 2004
Christian S. Wilton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 600 United States Courthouse, 300 Fourth Street South, Minneapolis, MN 55415, for plaintiff.
Mary M. Mateer, MATEER LAW OFFICE, P.O. Box 141079, Minneapolis, MN 55414, for defendant.
MEMORANDUM OPINION
On December 19, 2003, the defendant, Angel Meza-Lopez, entered a plea of guilty to Count 1 of a five-count indictment, charging him with conspiracy to distribute and possession with intent to distribute in excess of 500 grams of methamphetamine. At the sentencing hearing on March 18, 2004, the Court heard argument on defendant's objection to the number of criminal history points found by the probation officer in the presentence report and took under advisement a legal question involving application of the United States Sentencing Guidelines to the calculation of the defendant's criminal history category. The hearing was continued until the Court had the opportunity to review the issue fully, the resolution of which may or may not ultimately affect the sentence imposed on the defendant.
Mr. Meza-Lopez faces a ten-year mandatory minimum sentence under 18 U.S.C. § 3553(e) unless the prosecution moves under that statutory provision and guideline section 5K1.1 for a downward departure for substantial assistance, or unless he qualifies for a safety valve adjustment under guideline section 5C1.2. At this time, the prosecution has not moved for a downward departure, making the defendant's relief from the statutory mandatory minimum dependant upon whether he qualifies for the safety valve.
There is no question concerning the base offense level, which is 32, nor do the parties dispute that defendant qualifies for a three-level reduction for acceptance of responsibility. The plea agreement fully documents an adjusted offense level of 29. What is at issue is the number of criminal history points to be assessed against the defendant. Defendant is to be charged with one criminal history point for a conviction for domestic assault, fifth degree in Lyon County District Court, State of Minnesota on September 13, 1998. The parties disagree whether he should be charged a second criminal history point for a conviction for shoplifting on October 28, 1995, also in Lyon County District Court. Defendant allegedly stole boots valued at $68 from a Wal-Mart store in Marshall, Minnesota. Defendant served a probationary sentence after pleading guilty to this crime and was discharged early from probation on December 23, 1996.
On March 10, 2004, after the plea hearing in this case but before sentencing, the defendant filed a motion in Lyon County District Court to withdraw his plea on the shoplifting charge. Defense counsel argued that the defendant was never advised of the possible federal and immigration consequences of his plea and therefore had not entered into a knowing and voluntary plea. Plea petitions in state court today contain express language warning of these consequences. The state district court granted defendant's motion to withdraw his plea, withdrew defendant's finding of guilt, and dismissed the theft charge "in the interests of fairness."
In assessing whether the defendant is to be charged with a criminal history point for the now dismissed conviction, guideline section 4A1.2, application note 10 suggests:
Convictions Set Aside or Defendant Pardoned. A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. § 4A1.2(j).
Furthermore, the prosecution argues that the Eighth Circuit decision in United States v. Martinez-Cortez, 354 F.3d 830 (8th Cir. 2004), applies, and the Court must count the now dismissed conviction. In Martinez-Cortez, the defendant sought and received from the state district court a slight reduction of his two terms of probation. The purposes of the motions were to avoid one criminal history point for each prior conviction. There was no withdrawal of the guilty plea in state court and no dismissal of state charges. In a 2-1 decision, the Circuit held that Martinez-Cortez's modification of his state sentences after they were served were for reasons unrelated to his innocence or errors of law and thus the modification did not matter for federal sentencing purposes. The District Court was required to assess two criminal history points under guideline section 4A1.1(d) and Martinez-Cortez was thus ineligible for the safety valve.
The Court finds this case to be distinguishable from both Application Note 10 and Martinez-Cortez. In Meza Lopez's state case, his guilty plea was withdrawn, the finding of guilt withdrawn, and the theft charge was dismissed. His conviction was not "set-aside," nor was he "pardoned." Most importantly, the action taken by the state district court was not a mere modification of a sentence. The state district court essentially found that the conviction should be expunged. Only the timing of the motion suggests that the withdrawal may have occurred, like in Martinez-Cortez, for purposes of affecting a federal sentence. The state court's ruling indicated only that the charge was dismissed "in the interests of fairness," and this Court will not inquire further into the reasoning or motives of the state district court. The fact is that defendant's shoplifting conviction is no more, and therefore, it is impermissible to count it for federal sentencing purposes. Defendant's criminal history is Category I.
The Court's decision makes defendant eligible for safety valve consideration under section 5C1.2 of the Guidelines. However, section 5C1.2(a)(5) requires defendant to "truthfully provide to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." The Court will order defendant to provide such information to the prosecution in order to determine whether he qualifies for the safety valve.
If defendant qualifies for the safety valve, his adjusted offense level will be 27. With a criminal history category of I, the resulting guideline range will be 70 — 87 months before consideration of the downward departure motions brought by defendant. If defendant does not qualify for the safety valve, his adjusted offense level will be 29 and his criminal history category will be I. Although the guideline range would be 87 — 108 months, defendant will not be able to avoid the statutory mandatory minimum of 120 months, and the Court will be without authority to consider the downward departure motions.
CONCLUSION
Based on the foregoing records, files, and proceedings herein, the Court SUSTAINS defendant's objection to the criminal history category in the presentence report. The continued sentencing hearing will be rescheduled as soon as possible after defendant is given an opportunity to provide the safety valve-required information to the government.