United States v. Alcala
Justia.com Opinion Summary: After two days of trial, defendant, charged with conspiracy to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. 841(a)(1); 50 grams or more of cocaine base, 21 U.S.C. 841(b)(1)(A); and one kilogram or more of heroin, 21 U.S.C. 846, pled guilty to unlawful use of a communication facility to further a drug trafficking offense, 21 U.S.C. 841(a)(1), 843(b). He signed waivers of indictment and of appeal. During the plea colloquy, defendant stated that he had eight years of education, that he had never been declared mentally incompetent, and that he was not undergoing psychological or psychiatric care or using medications or any drug that would affect his comprehension. He stated that voluntarily accepted the plea and waivers. He later filed a letter with the court, ostensibly pro se, requesting to withdraw his guilty plea. His attorney moved to withdraw. The district court appointed new counsel, denied his motion to withdraw the plea and imposed a 34-month sentence, which amounted to time served, plus one year of supervised release. The Seventh Circuit dismissed an appeal, finding that the waiver was valid and encompassed his right to appeal denial of his motion to withdraw his plea.
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In the United States Court of Appeals For the Seventh Circuit No. 11-2412 U NITED S TATES OF A MERICA, Plaintiff-Appellee, v. H IPOLITO A LCALA, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-CR-00190âRudolph T. Randa, Judge. A RGUED A PRIL 4, 2012âD ECIDED M AY 3, 2012 Before E ASTERBROOK, Chief Judge, and F LAUM and M ANION, Circuit Judges. F LAUM, Circuit Judge. Hipolito Alcala pled guilty to a single count of unlawfully using a communication facility to further a drug trafficking offense. After the district court accepted his plea, but before sentencing, he moved to withdraw his plea. Despite the fact that, in his plea agreement, he waived his right to appeal his conviction, he now attempts to appeal the district courtâs 2 No. 11-2412 denial of his motion to withdraw his plea. He argues that he did not knowingly and voluntarily waive his right to appeal, stressing his background as a native Spanish-speaker with an eighth grade education. We dismiss the appeal. I. Background Hipolito Alcala (âAlcalaâ) was charged with conspiracy to possess with the intent to distribute five kilograms or more of cocaine, 21 U.S.C. Â§ 841(a)(1); fifty grams or more of cocaine base, 21 U.S.C. Â§ 841(b)(1)(A); and one kilogram or more of heroin, 21 U.S.C. Â§ 846. Initially, Alcala pled not guilty, and a two-day jury trial commenced on August 16 and 17, 2010. After several Government witnesses testified against him, Alcala informed the court that he intended to plead guilty. He and the Government agreed that he would plead to a reduced charge of unlawful use of a communication facility to further a drug trafficking offense, 21 U.S.C. Â§Â§ 841(a)(1), 843(b). On August 17, 2010, the Government filed an Information charging Alcala with the reduced charge. Alcala pled guilty to this offense, signing a Waiver of Indictment. His plea agreement contained the following provision: Based on the governmentâs concessions in this agreement, the defendant knowingly and voluntarily waives his right to appeal his sentence in this case and further waives his right to challenge his convic- No. 11-2412 3 tion or sentence in any post-conviction proceeding, including but not limited to a motion pursuant to 28 U.S.C. Â§ 2255. This waiver does not extend to an appeal or post-conviction motion based on (1) any punishment in excess of the statutory maximum, (2) the sentencing courtâs reliance on any constitutionally impermissible factor, and (3) ineffective assistance of counsel. The same day, Alcala appeared before the district court, which conducted his plea colloquy. During the plea colloquy, the district court asked Alcala about the extent of his education, whether he had ever been declared mentally incompetent or institutionalized, whether he was undergoing psychological or psychiatric care at the time, and whether he was using any medications or any type of drug that would affect his comprehension of the proceedings. Alcala answered that he had completed âeight yearsâ in school and ânoâ to the other questions. The district court asked him whether he had any questions either for counsel or for the court about the pleading process or the plea itself, and Alcala answered negatively. The district court also asked him whether he was satisfied with his counselâs representation thus far, and Alcala responded affirmatively. Finally, the district court stated: How do you plead to the charge? That is, Count 1 of this Information? Guilty or not guilty? But, before you answer, there is one other thing thatâs been waived here that I havenât discussed, and thatâs Paragraph 32. It says here that you knowingly and volun- 4 No. 11-2412 tarily waive your right to appeal the sentence and your right to challenge this conviction in any post-conviction proceeding, including but not limited to a motion pursuant to 2255 of Section 28 of the United States Code. But that this waiver does not extend to an appeal or post-conviction motion based on any punishment in excess of the statutory maximum, or if I rely upon any factor thatâs not permitted by the Constitution. Or, if in any way, Mr. Erickson is ineffective in representing you. Do you understand that thatâs waived when you plead guilty, Mr. Alcala? Alcala answered âYes.â The district court, therefore, accepted his plea. On August 24, 2010, Alcala filed a letter with the district court, ostensibly without the assistance of counsel, requesting to withdraw his guilty plea and be tried by jury. His attorney moved to withdraw as counsel, at which time the district court appointed new counsel. On December 2, 2010, Alcala filed a motion to withdraw his plea with supporting affidavit. The district court denied his motion and imposed a 34-month sentence, which amounted to time served, as well as one year of supervised release and a $100 special assessment. Alcala appeals, contending that he did not knowingly and voluntarily waive his right to appeal and that the district court erred in denying his motion to withdraw his plea. Because we find that Alcalaâs waiver No. 11-2412 5 was valid and encompassed his right to appeal the district courtâs denial of his motion to withdraw his plea, our review is foreclosed, and we dismiss this appeal. II. Discussion We review a district courtâs denial of a motion to withdraw a plea for abuse of discretion. United States v. Bryant, 557 F.3d 489, 495 (7th Cir. 2009). When, however, the plea agreement contains a provision in which the defendant waives his right to appeal, our review is foreclosed if (1) his attempt to withdraw his plea falls within the scope of the waiver, see United States v. Shah, 665 F.3d 827, 837 (7th Cir. 2011) (â[W]e enforce a waiver only if the disputed appeal comes within the ambit of the waiver.â), and (2) his waiver was valid, see United States v. Cole, 569 F.3d 774, 776 (7th Cir. 2009) (âAs a general rule, a defendant may waive the right to appeal his conviction and sentence, and appeal waivers are generally valid if they are made knowingly and voluntarily.â) (internal citations omitted); see also United States v. McGraw, 571 F.3d 624, 630 (7th Cir. 2009) (âA knowing and voluntary appeal waiver precludes appellate review.â). We review de novo whether a waiver is enforceable. See United States v. Quintero, 618 F.3d 746, 750 (7th Cir. 2010). In doing so, we interpret the terms of a plea agreement âaccording to the partiesâ reasonable expectations and construe any ambiguities in the light most favorable to the defendant.â Shah, 665 F.3d at 837 (citing 6 No. 11-2412 Quintero, 618 F.3d at 750). Additionally, we consider the plea colloquy, evaluating whether the district court âproperly informed the defendant that the waiver may bar the right to appeal.â Id. (citing Quintero, 618 F.3d at 750). A. Alcalaâs Motion to Withdraw His Plea Agreement Falls Within the Scope of His Appellate Waiver This Court has repeatedly recognized that a defendant may waive his right to appeal his conviction and sentence. See, e.g., Cole, 569 F.3d at 776. We have not yet considered, however, whether an appeal of a denial of a motion to withdraw a plea constitutes an appeal of the conviction. That is, we have not addressed whether a defendantâs waiver of his appellate rights applies to a motion to withdraw a plea. The Sixth Circuit recently confronted this question in United States v. Toth, 668 F.3d 374 (6th Cir. 2012), and held that such waiver, if valid, precludes a defendantâs right to appeal a denial of his motion to withdraw his plea. In Toth, the defendant signed a plea agreement with the Government in which he waived his right to appeal. Id. at 374. The terms of the agreement were specified to the district court during the defendantâs plea colloquy, including the defendantâs knowing, voluntary relinquishment of his appellate rights. Id. at 376-77. The district court, in turn, instructed the defendant that if he accepted the deal, he would not be able to withdraw his guilty plea âabsent a fair and just reason.â Id. at 377. No. 11-2412 The defendant indicated accepted the deal. Id. 7 that he understood and Some two-and-a-half months later, the defendant informed the court that he had been âtrickedâ by counsel into pleading guilty in spite of the truth. Id. The district court conducted an evidentiary hearing, concluded that the defendant had not demonstrated a âfair and just reason for requesting the withdrawal,â see F ED. R. C RIM. P. 11(d)(2)(B), and denied his motion to withdraw his plea. Toth, 668 F.3d at 377. The defendant appealed, and the Sixth Circuit, holding that the defendantâs waiver of appeal was valid and that his motion to withdraw his plea fell within the ambit of the waiver, dismissed his appeal. Id. at 377-79. In Toth, the Sixth Circuit echoed the conclusion reached by every circuit that has considered this question: the majority of circuits agree that appealing a denial of a motion to withdraw a plea âis an attempt to contest a conviction on appeal.â Id. at 378 (quoting United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001)) (internal quotation marks omitted). In addition to the Sixth Circuit, the Second, Third, Fourth, Eighth, Ninth, and Tenth Circuits have each held that when a defendant waives his right to appeal in a plea, he also waives his right to appeal a denial of his motion to withdraw that plea.1 1 See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam) (identifying an appeal of a denial of a motion to (continued...) 8 No. 11-2412 We agree with our sister circuits that a defendant challenges his conviction when he challenges the district courtâs denial of his motion to withdraw a plea. Accordingly, the only question before us is whether Alcalaâs signing of his plea agreement and waiver of his rights was knowing and voluntary. B. Alcalaâs Waiver Was Valid Alcala argues that as a native Spanish-speaker with an eighth grade education, he could not understand the appellate waiver provision. He also faults his plea colloquy proceedings. He claims, first, that the district 1 (...continued) withdraw a plea as âan issue related to the merits of the underlying convictionâ); United States v. Daniels, 278 Fed. Appx. 161, 162 (3d Cir. 2008) (â[A]n appeal of a denial of a motion to withdraw a guilty plea constitutes a challenge to a defendantâs conviction that falls within the plain language of an appellate waiver provision.â); United States v. Garner, 283 Fed. Appx. 176, 178 (4th Cir. 2008) (âIn challenging the district courtâs denial of his motion to withdraw his guilty plea, [the defendant] is contesting his conviction.â); United States v. Gray, 528 F.3d 1099, 1102 (8th Cir. 2008) (holding that a knowing, voluntary waiver of a right to appeal issues relating to the ânegotiation, taking[,] or acceptance of [a] guilty plea or the factual basis for the pleaâ precludes appellate review of a denial to withdraw the plea); United States v. Michlin, 34 F.3d 896, 898, 901 (9th Cir. 1994) (holding that a defendantâs valid waiver of his appellate rights forecloses his right to appeal a denial of his motion to withdraw his plea); Elliott, 264 F.3d at 1174. No. 11-2412 9 court failed to ask him about each trial right individuallyââthe right . . . to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses.â Second, he maintains that court prompted him for âyes or noâ answers that, in absence of a narrative, rendered it unable to assess his understanding and competence. In turn, he argues, he could not have knowingly and voluntarily agreed to relinquish his right to appeal, and the waiver is invalid and unenforceable. Although he does not state so specifically, his claim of invalid waiver extends to his waiverâs scope: if he could not understand the provision at all, he could not have understood that his appeal of a motion to withdraw a plea constituted an appeal of his conviction. In short, he did not knowingly, voluntarily give up his right to appeal the district courtâs judgment on that particular matter. We disagree. Waiver of the right to appeal is valid when a defendant knowingly and voluntarily relinquishes his right. See Shah, 665 F.3d at 837. In assessing the knowing and voluntary character of a defendantâs waiver, the court should lend particular credence to the defendantâs representations to the court during his plea colloquy, during which he is obligated to tell the truth. See Koons v. United States, 639 F.3d 348, 352 (7th Cir. 2011); Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010). His waiver is knowing and voluntary if he âunderstand[s] the choice confronting him and . . . understand[s] that choice is his to make.â United States 10 No. 11-2412 ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182-83 (7th Cir. 1983) (discussing waiver of the right to trial by jury); see also United States v. Johnson, 534 F.3d 690 (7th Cir. 2008) (â[W]aiver is likely knowing and voluntary if the defendant gave it for strategic reasons . . . .â). The court may also consider the fact that the defendant was represented by counsel, which, barring an ineffective assistance claim, supports a conclusion that the defendantâs waiver was informed and strategic. See DeRobertis, 714 F.2d at 1182 (âThe purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights.â (quoting Johnson v. Zerbst, 304 U.S. 458, 465 (1938)) (internal omissions omitted)). Alcalaâs alleged language difficulties and level of education might be troubling if he represented himself pro se or if he alleged ineffective assistance of counsel. He did not do so, however, and he makes no such charge against his original trial counsel. These elements of his background, of which the district court was aware during his plea colloquy, do not defeat our presumption that his responses to the courtâs inquiries were truthful, see Koons, 639 F.3d at 352; Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000). Nor does the fact that Alcalaâs responses were largely âyesâ or âno,â without more, defeat this presumption. See United States v. Messino, 55 F.3d 1241, 1253-54 (7th Cir. 1995) (holding that the defendant was not deprived of meaningful plea colloquy because he was asked only questions requiring âyesâ or ânoâ answers). While we stress that No. 11-2412 11 narrative responses in a plea colloquy are superior to inquiries from the court that elicit âyesâ or ânoâ answers, see, e.g., United States v. Groll, 992 F.2d 755, 760 n.7 (7th Cir. 1993) (â[S]imple affirmative or negative answers to the courtâs rote interrogatories give us pause in finding that [the defendant] entered her plea knowingly.â); United States v. Fountain, 777 F.2d 351, 356 (7th Cir. 1985) (âSimple affirmative or negative answers or responses which merely mimic the indictment or the plea agreement cannot fully elucidate the defendantâs state of mind as required by Rule 11.â), our review of the plea colloquy, the fact that Alacala was represented by counsel, and the fact that Alcala was provided with a translator during the colloquy evince that he comprehended the district courtâs inquiries. We similarly find unpersuasive Alcalaâs contention that he could not waive his right to a trial and appeal until the district court and his attorney had appraised him of each and every element of a trial. During the colloquy, the district court informed him that, by pleading guilty, he would be giving up his right to a jury trial, including calling witnesses, further presenting his case, and submitting his case to the jury for a determination of his guilt or innocence. He understood that he could choose between being judged by a group of his peers or pleading to the crime and accepting the Governmentâs support and sentencing recommendations. That understanding, coupled with his lawyerâs advice and the fact that he decided to plead after listening to several Government witnesses testify against him, indicates that his plea and waiver were strategic choices 12 No. 11-2412 and, thus, valid. See United States v. England, 507 F.3d 581, 586 (7th Cir. 2007) (âA court does not have to give the defendant a crash course in criminal law or trial procedure before a defendantâs waiver of his right to counsel will be voluntary.â); cf. DeRobertis, 715 F.2d at 1182-83 (noting, in evaluating the validity of a defendantâs waiver of his right to a jury trial, that âa defendant who is aware that the choice he faces is between being judged by a group of his fellow citizens or a judge may conclude intelligently that his lawyerâs advice, based upon his experience and his knowledge of law and procedure, is entitled to controlling weightâ). Favorably construing his argument, Alcalaâs strongest claim is that he did not understand that, once accepted by the court, his plea constituted the basis for his conviction, and, as part of his conviction, an attempt to withdraw it would fall within the scope of his appellate waiver. Such specifics were not communicated by either the district court or counsel during the colloquy. Moreover, neither the court nor counsel explicitly stated that, once accepted by the court, he had no right to revoke his plea and that his ability to do so hinged on the courtâs discretion. See generally United States v. Redmond, 667 F.3d 863, 870-71 (7th Cir. 2012) (âThere is no absolute right to withdraw a guilty plea.â). Arguably, the terms of his plea did not expressly and unambiguously clarify that he could not change his mind, see United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir. 2011) (âWe enforce appellate waivers when their terms are express and unambiguous . . . .â No. 11-2412 13 (internal quotation marks omitted)), and we construe ambiguities in his favor, see Shah, 665 F.3d at 837. Nevertheless, the terms of the plea agreement and the colloquy reveal that Alcala knowingly and voluntarily waived his right to appeal and inherently accepted the risk that he might regret that decision. He could not have reasonably expected that the district court would find him ânot guiltyâ after he had pled guilty. Once accepted by the court, his guilty plea was tantamount to his conviction, and the terms of his plea agreement clearly state that he agreed to waive his right to appeal his conviction, see supra Part I. He agreed to abide by all decisions of the court, reserving his right to appeal on three specific and exhaustive grounds: (1) any punishment in excess of the statutory maximum; (2) a sentence based on a constitutionally impermissible factor; and (3) ineffective assistance of counsel. See supra Part I. None of those exceptions underlie this appeal. At worst, he did not fully appreciate that he might wish to change his mind later, and that he could not become un-convicted except at the discretion of the court. Yet, such is the risk with pleabargaining and waiver. See McGraw, 571 F.3d at 630-31 (â[P]lea-bargain appeal waivers involve risk: â[b]y binding oneself one assumes the risk of future changes in circumstances in light of which oneâs bargain may prove to have been a bad one. That is the risk inherent in all contracts; they limit the partiesâ ability to take advantage of what may happen over the period in which the contract is in effect.â â (quoting United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005))). That the 14 No. 11-2412 risk materialized for Alcala does not trump the knowing and voluntary nature of his plea and waiver when he accepted the Governmentâs deal. Our review is foreclosed. III. Conclusion For the foregoing reasons, we D ISMISS this appeal. 5-3-12