UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4145
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELIPE JESUS MADRIGAL, a/k/a Sld Dft 3:03cr70-11,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00070-FDW-DSC-11)
Submitted: March 24, 2011 Decided: April 11, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry C. Su, HOWREY, LLP, East Palo Alto, California, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felipe Jesus Madrigal pleaded guilty, pursuant to a
plea agreement, to one count of conspiracy to possess with
intent to distribute cocaine and marijuana, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006). The district court sentenced
Madrigal to seventy months’ imprisonment. Madrigal’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating his opinion that there are no meritorious issue
for appeal but questioning whether Madrigal’s guilty plea was
knowing and voluntary and whether Madrigal’s trial counsel was
constitutionally ineffective. Madrigal filed a pro se
supplemental brief asserting that he was entitled to a
substantial assistance departure pursuant to U.S. Sentencing
Guidelines Manual § 5K1.1 (2004), and that the district court
erred in failing to apply the 18 U.S.C. § 3553(f) (2006) safety
valve. The Government has declined to file a responsive brief.
We affirm.
First, counsel questions whether Madrigal’s plea was
knowing and voluntary. Because Madrigal did not move in the
district court to withdraw his guilty plea, the Rule 11 hearing
is reviewed for plain error. United States v. Martinez, 277
F.3d 517, 525-26 (4th Cir. 2002). To establish plain error,
Madrigal “must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
2
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(reviewing unpreserved Rule 11 error). “The decision to correct
the error lies within [this Court’s] discretion, and [the Court]
exercise[s] that discretion only if the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Id. at 343 (internal quotation marks omitted).
After a careful review of the record, we conclude that no error,
plain or otherwise, was committed during the district court’s
acceptance of Madrigal’s guilty plea, which was knowing and
voluntary.
Next counsel questions whether Madrigal’s trial
counsel was ineffective. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United
States v. James, 337 F.3d 387, 391 (4th Cir. 2003); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To
allow for adequate development of the record, claims of
ineffective assistance generally should be brought in a 28
U.S.C.A. § 2255 motion. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997). Because our review of the record reveals
that ineffective assistance of counsel is not conclusively
established, this claim is not cognizable on direct review.
Next, Madrigal asserts that he was entitled to a
§ 5K1.1 departure. District courts can “review a prosecutor's
3
refusal to file a substantial-assistance motion and to grant a
remedy if they find that the refusal was based on an
unconstitutional motive.” Wade v. United States, 504 U.S. 181,
185-86 (1992). Madrigal’s plea agreement states that the
Government “may” make a § 5K1.1 motion, but clearly leaves the
decision of whether to move for a § 5K1.1 departure to the sole
discretion of the Government. When, as here, the plea agreement
imposed no binding obligation, even if the defendant cooperated
“fully and truthfully,” the decision whether to make the motion
lies with the government. United States v. Wallace, 22 F.3d 84,
87 (4th Cir. 1994). In this case, the Government made no
promises that it would move for a § 5K1.1 departure, nor does
Madrigal allege that the Government’s refusal to make such a
motion was based on an unconstitutional motive. Accordingly,
Madrigal failed to demonstrate he was entitled to a departure.
Lastly, Madrigal contends that he should have been
eligible for the safety valve reduction. A district court’s
determination of whether a defendant has satisfied the safety
valve criteria is a question of fact reviewed for clear error.
United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).
This deferential standard of review permits reversal only if
this court is “‘left with the definite and firm conviction that
a mistake has been committed.’” United States v. Stevenson, 396
F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer
4
City, 470 U.S. 564, 573 (1985)). To qualify for the safety
valve provision, the defendant must establish the existence of
five prerequisites. 18 U.S.C. § 3553(f) (2006); USSG § 5C1.2.
The burden is on the defendant to prove that all five safety
valve requirements have been met. United States v.
Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). Because of
Madrigal’s passport fraud conviction, he had two criminal
history points. Therefore, Madrigal does not satisfy the
statutory requirement that the defendant have no more than one
criminal history point. Accordingly, the district court did not
err, clearly or otherwise, in finding that Madrigal did not
qualify for the safety valve.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
This court requires that counsel inform Madrigal, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Madrigal requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Madrigal.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before the court and argument would not aid the decisional
process.
AFFIRMED
6