United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2988
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United States of America, *
*
Appellee, *
*
v. *
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Jose M. Alvarado, *
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Appellant. *
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Appeals from the United States
No. 09-3160 District Court for the
___________ Western District of Arkansas.
United States of America, *
*
Appellee, *
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v. *
*
Juan Carrillo, also known as *
Juan Corona-Carmona, *
*
Appellant. *
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Submitted: April 16, 2010
Filed: August 5, 2010
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Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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RILEY, Chief Judge.
A grand jury indicted Jose M. Alvarado, Juan Carrillo, and twelve other
defendants on multiple counts, including conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii), and 846 (Count I); and
conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i)
and 1956(h) (Count II). Alvarado pled guilty to Count I, and Carrillo pled guilty to
Count II. Alvarado filed a motion to withdraw his guilty plea, which the district court1
denied. The district court sentenced Alvarado to 120 months imprisonment, and
Carrillo to 240 months imprisonment. Alvarado appeals the district court’s denial of
his motion to withdraw his guilty plea. Alvarado and Carrillo both appeal their
sentences. We affirm in each case.
I. BACKGROUND
A. Alvarado’s Guilty Plea and Sentencing
On February 2, 2009, Alvarado pled guilty to Count I pursuant to a written plea
agreement. On February 23, 2009, Alvarado filed a motion to withdraw his guilty
plea. In an amended motion, Alvarado claimed (1) two days before Alvarado pled
guilty, one of his co-defendants assaulted him in jail, and he lost confidence in the
government’s ability to protect him; (2) Alvarado wanted to maintain his innocence
at his change of plea hearing, but was afraid to do so because of the beating and the
government’s inability to protect him; (3) Alvarado obtained new evidence later on
the day of his plea when he encountered a co-defendant in jail who stated he had
knowledge of threats Carrillo made against Alvarado and his family; (4) the beating
and resulting fear of future violence rendered his plea involuntary; (5) Alvarado
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
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believed he was innocent of voluntarily participating in a conspiracy; and
(6) Alvarado maintained his innocence until January 25, 2009, when he agreed to
plead guilty.
The district court held a hearing on Alvarado’s motion to withdraw his guilty
plea. Alvarado’s counsel provided a lengthy opening statement, setting forth all of the
reasons Alvarado should have been permitted to withdraw his guilty plea, largely
mirroring the reasons set forth in Alvarado’s motion to withdraw. Alvarado’s counsel
also explained the government had tendered two potential plea agreements, but
because a storm was coming and the plea hearing was scheduled for the following
Monday, counsel decided which plea agreement to use, brought the plea agreement
to Alvarado in the jail, and had Alvarado sign the agreement without the benefit of a
translator. Alvarado’s counsel stated he returned to the jail with a translator on the
Saturday before the change of plea hearing and went over the plea agreement with
Alvarado for the first time. Alvarado’s counsel asserted Alvarado informed him of
the beating Alvarado sustained in jail, but counsel decided not to raise it at the change
of plea hearing. Alvarado’s counsel maintained, after the plea hearing, Alvarado met
a witness who could support Alvarado’s claim of innocence or excuse. Between ten
and fourteen days after the plea hearing, Alvarado notified counsel he wanted to
withdraw his guilty plea. Alvarado’s counsel filed the motion to withdraw the plea
one week later, “giv[ing Alvarado] a chance to sit on it before [counsel] filed a
motion.”
The district court treated Alvarado’s counsel’s opening statement as a proffer.
The district court found there was no reason to proceed with a hearing because, even
if Alvarado could prove everything set forth in his proffer, none of the offered reasons
provided a sufficient basis for a plea withdrawal. The district court then denied
Alvarado’s motion to withdraw his guilty plea.
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During Alvarado’s sentencing hearing, Alvarado argued for the first time that
he was eligible for safety valve relief pursuant to United States Sentencing Guidelines
(U.S.S.G. or Guidelines) § 5C1.2. The district court did not explicitly address the
newly raised safety valve issue, and Alvarado did not request a ruling. The district
court sentenced Alvarado to 120 months imprisonment, five years supervised release,
and a $15,000 fine.
B. Carrillo’s Guilty Plea and Sentencing
Carrillo cooperated with the government and pled guilty to conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h). Based upon Carrillo’s
total offense level of 43 and criminal history category of III, the advisory Guidelines
recommended a sentence of life imprisonment. The money laundering offense carried
a 20-year maximum sentence, creating a Guidelines range of 240 months
imprisonment. The government filed an amended motion for a 12-month downward
departure from the 240-month sentencing range due to Carrillo’s substantial
assistance, pursuant to U.S.S.G. § 5K1.1. During Carrillo’s sentencing hearing, the
district court granted the government’s motion for a downward departure, giving
Carrillo a Guidelines range of 228 to 240 months imprisonment. The district court
considered the significant benefit Carrillo received from the government’s charging
decision, and each of the 18 U.S.C. § 3553(a) factors, and determined a sentence at
the high end of the Guidelines range was appropriate. The district court sentenced
Carrillo to 240 months imprisonment, three years supervised release, and a $50,000
fine.
II. DISCUSSION
A. Alvarado’s Claims on Appeal
Alvarado contends the district court erred by (1) failing to hold a hearing on,
and failing to grant, Alvarado’s motion to withdraw his guilty plea; (2) enhancing
Alvarado’s sentence for obstruction of justice under U.S.S.G. § 3C1.1; and (3) failing
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to rule on, and failing to grant, Alvarado’s request for safety valve relief pursuant to
18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2.
1. Motion to Withdraw Guilty Plea
“We review both the denial of a motion to withdraw and the refusal to hold a
hearing under the abuse of discretion standard.” United States v. Morrison, 967 F.2d
264, 268 (8th Cir. 1992). Under Fed. R. Crim. P. 11(d)(2)(B), after a court accepts a
guilty plea, a defendant may still withdraw the plea before sentence is imposed if “the
defendant can show a fair and just reason for requesting the withdrawal.” See United
States v. Bastian, 603 F.3d 460, 464 (8th Cir. 2010). The trial court can deny a motion
to withdraw a guilty plea without holding an evidentiary hearing “if the allegations in
the motion are inherently unreliable, are not supported by specific facts or are not
grounds for withdrawal even if true.” Morrison, 967 F.2d at 267-68 (quoting United
States v. Thompson, 906 F.2d 1292, 1299 (8th Cir. 1990)). “The plea of guilty is a
solemn act not to be disregarded because of belated misgivings about [its] wisdom.”
Id. (quoting United States v. Woosley, 440 F.2d 1280, 1281 (8th Cir. 1971)). “When
a defendant has entered a knowing and voluntary plea of guilty at a hearing at which
he acknowledged committing the crime, ‘the occasion for setting aside a guilty plea
should seldom arise.’” Id. (quoting United States v. Rawlins, 440 F.2d 1043, 1046
(8th Cir. 1971)).
The district court granted Alvarado’s request for a hearing on his motion to
withdraw his guilty plea. During the hearing, Alvarado’s counsel gave a detailed
opening statement listing the reasons Alvarado should have been permitted to
withdraw his plea, and providing a description of the evidence counsel intended to
present in support of Alvarado’s motion. After opening statements, the district court
concluded there was no need to proceed with the evidentiary portion of the hearing
because, even if all of the allegations in Alvarado’s opening statement were true, the
allegations did not provide a sufficient basis for withdrawal of his plea.
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The district court confirmed, except for the alleged conversation Alvarado had
with one of his co-defendants, all of the allegations Alvarado raised in support of his
motion to withdraw were known to Alvarado and his attorney before Alvarado pled
guilty. Alvarado’s counsel conceded he and Alvarado made a “conscious, knowing
decision” not to bring the information to the court’s attention. The district court then
recounted Alvarado’s plea hearing, emphasizing Alvarado (1) told the court he was
pleased with his counsel then and now, (2) stated he understood and signed the plea
agreement which had been translated from English to Spanish, (3) indicated no one
had threatened or forced him to sign the agreement, (4) advised the court the plea
agreement was complete and the factual basis was true and correct, (5) stated he
understood the potential punishment he could receive, (6) indicated he did not have
any questions, and (7) pled guilty to the offense. The court was troubled that
Alvarado was claiming “there were all sorts of reasons why [Alvarado] was, and is,
not guilty of the offense to which he pled.”
The district court responded to all of Alvarado’s proffered reasons for
withdrawal. First, the court considered Alvarado’s assertion that he consistently
maintained his innocence until he decided, on his own accord, to plead guilty to the
offense. The district court found it was not unusual for a defendant to maintain his
innocence until deciding to plead guilty. The district court also discussed Alvarado’s
explanation for his possession of scales and a crystalline substance used to cut
methamphetamine. The district court found it was not unusual for a defendant to have
an innocent explanation for some of the evidence which would otherwise seem to
support guilt.
Alvarado also denied he confessed to the crime. The district court found, even
if Alvarado had raised this at the plea hearing, it did not constitute compelling
evidence of actual innocence, and would not have resulted in the court’s denial of
Alvarado’s guilty plea. Instead, the court determined the alleged confession might
have been inadmissible if there had been a trial. The district court cited to other
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evidence supporting Alvarado’s guilt, and concluded Alvarado’s allegations did not
suggest Alvarado was actually innocent.
Next, the district court discussed Alvarado’s claim that after the plea hearing,
Alvarado returned to his holding cell, where Alvarado met one of his co-defendants.
Alvarado alleged his co-defendant knew Carrillo made threats against Alvarado and
his family in an effort to receive payment for drugs. The district court explained this
alleged conversation did not support Alvarado’s claim of innocence.
The district court also examined Alvarado’s assertion that he was assaulted
while incarcerated. The district court pointed out Alvarado had decided to plead
guilty to the offense on January 25, 2009, signed a written plea agreement on January
26, 2009, and was not assaulted until January 30, 2009. The district court proposed
that this time-line demonstrates the assault did not cause Alvarado to plead guilty.
While Alvarado contends the plea agreement was not fully translated to him on
January 26, 2009, the court believed Alvarado fully understood the contents of the
plea agreement and the factual basis during the plea hearing. The court then
determined it would be inappropriate to set aside a guilty plea, after Alvarado earlier
represented to the court that he had not been threatened, forced, or coerced to plead
guilty, simply because Alvarado had a change of heart.
The court also was concerned that weeks had passed between the date of
Alvarado’s guilty plea and the date counsel filed a motion to withdraw. Although
Alvarado allegedly spoke to his co-defendant on the same date as the plea hearing,
Alvarado did not notify his attorney he wished to withdraw his guilty plea until two
weeks later. Alvarado’s counsel waited “several days” before filing a motion to
withdraw to see if Alvarado would change his mind again. The court reasoned, if
Alvarado believed this conversation to be a basis for withdrawing his guilty plea, he
likely would have contacted counsel immediately. The court then declared, “a change
of heart is just not sufficient to set aside a Plea Agreement that is undertaken by this
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Court under the circumstances . . . described.” After discussing each of Alvarado’s
proffered justifications for withdrawal, the district court resolved that Alvarado’s
stated reasons, even if true, did not support a finding of actual innocence, nor did they
provide a sufficient basis to permit Alvarado to withdraw his guilty plea. Thus, the
district court found it would be unnecessary to continue with the evidentiary hearing,
and denied Alvarado’s motion to withdraw.
The district court did not abuse its discretion when it decided not to proceed
with the evidentiary portion of the plea withdrawal hearing. See Morrison, 967 F.2d
at 268 (standard of review). The court was not required to continue with the hearing
after it determined that all of Alvarado’s allegations, even if true, were not grounds
for a plea withdrawal. See id. Likewise, the district court did not abuse its discretion
when it denied Alvarado’s motion to withdraw his guilty plea. Alvarado had the
burden to establish a fair and just reason for the withdrawal, and he plainly did not
meet that burden in this case. See Bastian, 603 F.3d at 464; Morrison, 967 F.2d at 268
(“An assertion of innocence—even a ‘swift change of heart after the plea’—does not
constitute a ‘fair and just reason’ to grant withdrawal.”). We affirm the district court’s
decision to terminate the evidentiary hearing and to deny Alvarado’s motion to
withdraw his guilty plea.
2. Obstruction of Justice
Alvarado argues the district court erred in imposing a two-level sentencing
enhancement under U.S.S.G. § 3C1.1 for obstructing or impeding the administration
of justice. A district court must find the predicate facts supporting such an
enhancement for obstruction of justice by a preponderance of the evidence. United
States v. Cunningham, 593 F.3d 726, 730 (8th Cir. 2010). We give great deference
to the district court’s decision to enhance a sentence for obstruction of justice, and we
review the district court’s factual findings pertaining to the enhancement for clear
error. Id.
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Guidelines Section 3C1.1 states,
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
Application Note 4 to U.S.S.G. § 3C1.1 provides examples of conduct triggering the
enhancement. These examples include “committing, suborning, or attempting to
suborn perjury”; “producing or attempting to produce a false, altered, or counterfeit
document or record during an official investigation or judicial proceeding”; and
“providing materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1
cmt. n.4.
Before Alvarado’s sentencing hearing, he filed a written objection to the
presentence investigation report’s (PSR) recommendation that Alvarado’s offense
level should be increased two levels for obstruction of justice. During Alvarado’s
sentencing hearing, the district court thoroughly considered Alvarado’s objection.
The district court found Alvarado had “represented to the Court that the assertions that
he had made under oath at the plea colloquy were simply false,” and he “clearly
falsely stated that he was innocent, that he hadn’t done what was alleged, [and] that
he didn’t realize what was transpiring.” The district court then overruled Alvarado’s
objection to the obstruction of justice enhancement, finding “the addition of the points
for obstruction of justice [wa]s appropriate.”
The district court did not clearly err in finding Alvarado’s conduct amounted
to obstruction of justice under U.S.S.G. § 3C1.1. During Alvarado’s initial change of
plea hearing, Alvarado acknowledged he was guilty of conspiracy to distribute
methamphetamine, and Alvarado admitted a series of facts which supported his guilt.
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Later, Alvarado attempted to withdraw his guilty plea, and he made statements to the
court which directly contradicted the sworn statements Alvarado made during his
change of plea hearing. Alvarado also signed a sworn affidavit which contradicted his
prior sworn statements and the undisputed facts in the PSR. When a defendant
“testifies falsely under oath in regard to a material matter and does so willfully rather
than out of confusion or mistake,” the defendant is subject to a two-level enhancement
for obstruction of justice. United States v. Mendoza-Gonzales, 363 F.3d 788, 796 (8th
Cir. 2004). The district court did not clearly err in finding Alvarado’s conduct
sufficient to qualify for the enhancement.
3. Safety Valve Relief
Alvarado maintains the district court erred by failing to rule on, and failing to
grant, Alvarado’s request to be sentenced pursuant to the safety valve provision in
18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2.
Under the “safety valve” exception to statutory minimum sentences, a
drug defendant may be given a more lenient sentence within the
otherwise applicable guidelines range if, among other things, the
defendant “provide[s] 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.”
United States v. Romo, 81 F.3d 84, 85 (8th Cir. 1996) (quoting 18 U.S.C.
§ 3553(f)(5)). To qualify for the safety valve exception, a defendant must disclose all
information about his involvement in the crime, including the identities and
participation of others. Id. The defendant has the burden to demonstrate he has
provided the government “truthful information and evidence about the relevant crimes
before sentencing.” Id. at 85-86.
When Alvarado testified at his initial change of plea hearing, and later signed
an affidavit contradicting his plea testimony, Alvarado gave the district court two
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inconsistent sworn statements. If the district court believed the second sworn
statement to be a truthful disclosure of all the information Alvarado had pertaining to
the conspiracy, the district court could have granted safety valve relief on that basis.
See United States v. Gomez-Perez, 452 F.3d 739, 741-42 (8th Cir. 2006). The district
court did not believe Alvarado’s second statement was truthful, and Alvarado did not
meet his burden of showing, by a preponderance of the evidence, that he provided a
complete and truthful disclosure. See id. at 741 (“A district court finding a defendant
told several different versions of a story is a sufficient basis to find the defendant
failed to truthfully and completely disclose.”).
Although the district court did not make explicit findings as to whether
Alvarado qualified for safety valve relief, the district court’s finding that Alvarado
obstructed justice under the facts of this case precluded such relief. See United States
v. Morones, 181 F.3d 888, 891 (8th Cir. 1999) (explaining when a defendant “initially
tells the government the whole truth but later recants,” the “defendant is no more
entitled to safety valve relief than the defendant who never discloses anything about
the crime and its participants”). The district court did not clearly err in not explicitly
addressing Alvarado’s request for safety valve relief on the record. See Romo, 81
F.3d at 86 (standard of review). Cf. United States v. Cunningham, 429 F.3d 673, 678-
79 (7th Cir. 2005) (declaring a sentencing judge is not required to discuss meritless
legal arguments). But see United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir.
1996) (holding the district court erred when it failed to provide reasons for its decision
not to grant safety valve relief under U.S.S.G. § 5C1.2). We affirm the district court’s
judgment with respect to Alvarado’s claims.
B. Carrillo’s Claims on Appeal
Carrillo maintains the district court erred by (1) conducting an improper
Guidelines calculation, and (2) considering inappropriate and irrelevant factors. We
review the district court’s sentence for an abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). In conducting our review, we must first determine
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whether the district court committed a significant procedural error, such as
miscalculating the Guidelines range, treating the Guidelines as mandatory, or selecting
a sentence based on clearly erroneous facts. Id. If we find the district court’s sentence
is procedurally sound, we next consider whether it is substantively reasonable. Id. We
may find the district court abused its discretion if the court fails to consider a relevant
factor, gives significant weight to an improper or irrelevant factor, or commits a clear
error of judgment when weighing the appropriate factors. See United States v. Haack,
403 F.3d 997, 1004 (8th Cir. 2005).
Based upon Carrillo’s total offense level of 43 and criminal history category III,
the advisory Guidelines recommended a sentence of life imprisonment. The district
court noted the government charged Carrillo with conspiracy to commit money
laundering under 18 U.S.C. § 1956(h), which has a maximum sentence of 20 years.
This resulted in a Guidelines range of 240 months imprisonment. The district court
then examined the government’s motion for a downward departure under U.S.S.G.
§ 5K1.1 for Carrillo’s substantial assistance. Carrillo contends the district court used
the wrong Guidelines range as a starting point when calculating the appropriate
downward departure, and the district court’s discussion of his potential sentence of
life imprisonment demonstrates the district court erred in its calculation. We disagree.
The district court recognized “with the statutory cap in place, that the point of
departure to be considered is the 240 months statutory cap and not what the guidelines
would have otherwise been.” The court continued its analysis with a lengthy
discussion of the benefit Carrillo received from his plea agreement and the
government’s decision to charge him under a statute with a statutory cap well below
his otherwise applicable Guidelines range. The district court instructed, in some
situations, one might consider a sentence of 360 months imprisonment to be the
equivalent of a life sentence. The district court explained, under that theory, Carrillo
already received the benefit of a six-level reduction from the government’s charging
decision. The district court contemplated whether, in light of the benefit Carrillo
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already received, it would be appropriate to grant the government’s U.S.S.G. § 5K1.1
motion. The district court then decided to grant the government’s motion for a 12-
month downward departure, resulting in a Guidelines range of 228 to 240 months.
The district court used the proper starting point—240 months—for calculating an
appropriate downward departure.
Further, the district court did not consider an inappropriate or irrelevant factor
by considering the benefit Carrillo received from the government’s charging decision.
See United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir. 1991) (holding it was
within the district court’s discretion—when determining the extent of a downward
departure pursuant to the government’s U.S.S.G. § 5K1.1 motion—to weigh the
assistance the defendant provided the prosecution against the benefit the defendant
received from the prosecution’s decision not to press an additional charge). Carrillo’s
within Guidelines sentence is both procedurally sound and substantively reasonable.
See Rita v. United States, 551 U.S. 338, 347 (2007) (holding a court of appeals may
apply a presumption of reasonableness to a district court sentence that reflects a proper
application of the Guidelines).
III. CONCLUSION
We affirm the district court’s judgments.
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