Opinion
NO. 3-01-CR-0057-L, NO. 3-02-CV-1907-L
November 14, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Jose Rolando Rivas-Martinez, appearing pro se, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be denied.
I.
Defendant pled guilty to a one-count superseding information charging him with conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846. Punishment was assessed at 63 months confinement followed by supervised release for a period of five years. No appeal was taken. Instead, defendant filed this motion under 28 U.S.C. § 2255.
II.
Although the precise nature of defendant's claims are not entirely clear from his motion, he appears to challenge his conviction and sentence on two grounds: (1) the trial court failed to ensure that his guilty plea was knowing and voluntary; and (2) he was entitled to a four-point reduction in the base offense level due to his minimal involvement in the drug conspiracy.
As a preliminary matter, the government argues that defendant waived his right to seek post-conviction relief as part of the plea agreement. This requires the court to examine the scope of the waiver provision and the validity of defendant's guilty plea.
A.
A defendant can waive his right to appeal and seek post-conviction relief as part of a plea agreement. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). However, such a waiver must be informed and voluntary. The trial court must ensure that the defendant fully understands his rights and the consequences of a waiver. Id., citing United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992), cert. denied, 113 S.Ct. 2457 (1993).
The plea agreement signed by defendant contains a waiver of post-conviction remedies. The agreement provides, in relevant part:
The defendant hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255.
(Gov't Resp., Exh. 1 at 3-4, ¶ 7) (emphasis added). This provision was pointed out to defendant at the rearraignment. Defendant said he understood that he could not appeal or challenge his sentence in a motion for post-conviction relief except in "certain limited circumstances." ( Id., Exh. 2 at 32).
Under the plea agreement, those circumstances are limited to: (1) any punishment imposed in excess of the statutory maximum; (2) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court; (3) arithmetic errors in the guideline calculations; and (4) a claim of ineffective assistance of counsel. ( Id., Exh. 1 at 4, ¶ 7). None of these exceptions are at issue in this case. invalidate the waiver provision. The court must therefore examine the validity of defendant's guilty plea.
In one of his arguments, defendant contends that he was not properly admonished by the trial court prior to pleading guilty. This claim, if proved, would vitiate the plea agreement and
B.
A trial judge is required to ensure that a guilty plea is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). The defendant must "[have] a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 112 S.Ct. 1678 (1992), quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). The Fifth Circuit has identified three core concerns in a guilty plea proceeding: (1) the absence of coercion; (2) a full understanding of the charges; and (3) a realistic appreciation of the consequences of the plea. United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). Rule 11 of the Federal Rules of Criminal Procedure provides "prophylactic protection" for these constitutional rights. See id. at 627; United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), cert. denied, 110 S.Ct. 203 (1989).
Contrary to defendant's assertion, the trial judge properly admonished him in accordance with Rule 11. The elements of the offense were summarized for defendant in open court. (Gov't Resp., Exh. 2 at 11). Defendant said he understood the nature of the charge alleged in the information and declined to ask any questions. ( Id., Exh. 2 at 12). The trial judge also informed defendant of the maximum penalty for the offense and the effect of a supervised release term. ( Id., Exh. 2 at 26-27). Defendant was told that the court would consider any applicable sentencing guidelines and may depart from the guidelines under some circumstances. (Id., ETh. 2 at 28-31). The judge advised defendant of his right to a jury trial, his right against self-incrimination, and his right to confront and cross-examine witnesses. ( Id., Exh. 2 at 23-26). Defendant acknowledged that he would be giving up those rights if he pled guilty. ( Id., Exh. 2 at 25). Finally, defendant testified that he understood the terms of the plea agreement and that his plea was not induced by promises, threats, or representations not contained in the written plea documents. ( Id., Exh. 2 at 19-21). This sworn testimony carries a strong presumption of veracity in a subsequent habeas proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).
It is clear from the record that defendant was properly admonished before the trial court accepted his guilty plea and that his plea was knowingly, freely, and voluntarily made. As a result, both the plea agreement and the waiver provision must be upheld.
C.
Having waived his right to seek post-conviction relief, defendant cannot challenge his sentence on the grounds that he was entitled to a four-point reduction in the base offense level due to his minimal involvement in the drug conspiracy. Accordingly, this ground for relief should be overruled.
Defendant would not be entitled to relief on this ground even had he not waived his post-conviction remedies. Collateral review under section 2255 is limited to constitutional claims which could not have been raised on direct appeal and would, if ignored, result in a complete miscarriage of justice. See United States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992). A misapplication of the sentencing guidelines does not fall within the narrow category of claims subject to review under 28 U.S.C. § 2255. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Captain, 99 F.3d 1273, 1281 (5th Cir. 1996).
RECOMMENDATION
Defendant's motion to correct, vacate, or set aside sentence should be denied.