United States v. Valdez

United States Court of Appeals
For the First Circuit

No. 18-2219

UNITED STATES OF AMERICA,

Appellee,

v.

CLAUDIO VALDEZ, a/k/a Claudio Radhames Valdez Nunez, a/k/a
Radhames, a/k/a Carlos Giovanetti Torres, a/k/a Luis Hernandez,
a/k/a Luis Nunes,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., Chief U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

John T. Ouderkirk, Jr., by appointment of the Court, on brief
for appellant.
Donald C. Lockhart, Assistant United States Attorney, and
Aaron L. Weisman, United States Attorney, on brief for appellee.

September 21, 2020
 LYNCH, Circuit Judge. Claudio Valdez entered into a

plea agreement and was sentenced to 240 months' imprisonment

pursuant to that agreement. The district court denied his pro se

motions to withdraw his guilty plea and to appoint new counsel.

We affirm.

I.

On April 11, 2017, Valdez was arrested as a leader and

organizer of a major drug-trafficking organization which had

customers in Connecticut, Massachusetts, and Rhode Island. On May

4, 2017, Valdez was charged by indictment with one count of

conspiracy to distribute and to possess with intent to distribute

one kilogram or more of heroin, and other amounts of fentanyl,

cocaine base, and cocaine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846, and one count of illegal reentry in violation

of 8 U.S.C. § 1326(a) and (b)(2).

On April 12, 2017, Valdez was appointed counsel. On

January 25, 2018, he filed a motion seeking new court-appointed

counsel, arguing that his attorney had a "conflict of interest"

and was not "represent[ing] [his] best interest and well-being,"

but failed to specify facts evidencing such a conflict. A hearing

on the motion was held before a magistrate judge on February 15,

2018, who denied the motion as "conclusory" and a "purely tactical

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attempt[] [by the defendant] to try to either create appeal issues

or to delay proceedings by the replacement of counsel."1

On May 17, 2018, Valdez signed a plea agreement. The

government agreed not to file a sentencing enhancement pursuant to

21 U.S.C. § 851. Such an enhancement would have exposed the

defendant to a mandatory life sentence. The government also agreed

to recommend that the court impose a term of twenty years'

imprisonment. Valdez specifically "stipulate[d] and agree[d]" to

the facts contained in the plea agreement. Valdez also

acknowledged that he understood the possible statutory penalties

for the charged offenses and the sentence he would receive if the

court accepted the plea agreement. Finally, before signing, Valdez

acknowledged that he "ha[d] read the agreement or ha[d] had it

read to [him], ha[d] discussed it with [his] [attorney],

underst[ood] it, and agree[d] to its provisions."2

A change-of-plea hearing was held on June 7, 2018. At

that hearing, Valdez affirmed that he had "thoroughly reviewed the

plea agreement with [his] attorney and [his attorney had] answered

any questions that [he] ha[d] about that plea agreement," and that

he "underst[ood] as part of that plea agreement . . . that [his]

1 Valdez appealed the denial of that motion, but the appeal
was voluntarily dismissed after he "entered a plea of guilty with
the assistance of counsel."

2 The plea agreement also included an appeal waiver, which
the government does not seek to enforce.

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attorney will recommend 20 years of imprisonment and the Government

will recommend 20 years of imprisonment." In response to a

question from the court regarding whether he had "been treated

recently for any mental illness or addiction to narcotic drugs,"

Valdez stated that he was "taking medication to treat anxiety and

for something else" and that he had not taken the medication since

"[y]esterday." The court then asked him whether his not having

taken the medication was "having any effect on [his] ability to

think clearly today," to which the defendant answered "I'm aware

of what's happening" and "I can think clearly."

The district court asked Valdez whether he had reviewed

the indictment and the consequences of the indictment with his

attorney and whether his attorney had answered any questions with

respect to the indictment, and the defendant answered in the

affirmative. Valdez also confirmed that he was "fully satisfied"

with the representation he had received from his attorney. The

court reviewed with Valdez the maximum penalties it could impose

at sentencing, which included "a mandatory minimum of 10 years but

up to a lifetime of imprisonment" for the drug offense and a

maximum of twenty years' imprisonment for the illegal reentry

offense. Valdez acknowledged that he understood those penalties.

The government recited the elements of the charged

offenses and the facts, including those facts Valdez had stipulated

to in the plea agreement and more specific details about the drug-

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trafficking conspiracy and law enforcement investigation. The

district court then "remind[ed] [Valdez] [that the government

would] have to prove each and every one of those elements beyond

a reasonable doubt for [him] to be found guilty of either or both

charges," and asked Valdez whether he "admit[ted] [to] the facts

as stated by the Government as true." Valdez stated that he did.

He had no questions for the court and had nothing further to

discuss with his attorney at that time. The district court

accepted the guilty plea as knowing and voluntary.

The sentencing hearing was held on November 28, 2018.

At the beginning of the hearing, Valdez submitted a letter to the

court, a translation of which stated in relevant part that "I had

no idea, I signed that -- meaning plea agreement -- because my

lawyer told me that my sentence would be 10 to 20 years," that

"[m]y lawyer never explained with certitude so that I could have

a better understanding of the process of coming to or agreeing to

a plea," and that "[h]e never reviewed the evidence with me . . .

before the agreement." Valdez also stated that "I tried to fire

[my lawyer]" and "there's been a breakdown in communication, I do

not trust him, and he does not trust me." Valdez further stated

that "I signed the plea agreement which I did not understand, and

right now I wish to withdraw from that agreement and to abandon

that negotiation" and "I also want to change my lawyer."

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 The district court construed the defendant's statement

as making two separate motions: (1) a motion to withdraw the guilty

plea and (2) a motion to appoint new counsel. After hearing from

both the government and defense counsel, the court denied both

motions. With respect to the first, the court stated that it

vividly recall[ed] [the defendant] under oath
admitting that [he] w[as] satisfied with [his]
representation of counsel, that [his attorney]
had fully explained the matter to [him], [and]
that [he] w[as] aware that the plea agreement
that [he] told [the court] [he] knowingly and
voluntarily signed included a mandatory
binding 20-year sentence.

The court concluded that Valdez had "not presented any evidence

. . . that would support a withdrawal of the plea." As to the

second motion, the court noted that a magistrate judge had already

determined that the defendant's previous attempt to replace his

attorney "was a deliberate attempt . . . to stall and disrupt the

orderly administration of this case." The court stated that Valdez

was entitled to a court-appointed attorney who is competent, not

one of his own choosing, and that the defendant had "received that

exceedingly well." It stated that the defendant's attorney was

known "by reputation and observation as one of the finest criminal

defense lawyers in our state if not in our region." The court

concluded that, having observed defense counsel's representation

of the defendant throughout the case, it "ha[d] nothing but the

greatest confidence that he ha[d] well and adequately represented

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[Valdez] as he routinely and regularly d[id] and always does before

this Court." The court accepted the joint sentencing

recommendation in the plea agreement and sentenced Valdez to twenty

years' imprisonment.

Valdez timely appealed.

II.

Represented by new counsel on appeal, Valdez raises

several claims of error with respect to the denial of his motion

to withdraw the guilty plea. Valdez also argues that the district

court abused its discretion in denying the motion for new court-

appointed counsel by "fail[ing] to consider the three guiding

factors" for such requests.

Generally, an appeal from the denial of a motion to

withdraw a guilty plea before sentencing is reviewed for abuse of

discretion. United States v. Rodríguez-Morales, 647 F.3d 395, 397

(1st Cir. 2011); United States v. De Alba Pagan, 33 F.3d 125, 127

(1st Cir. 1994). The burden is on the defendant to prove that

there is a "fair and just reason" to withdraw the guilty plea prior

to sentencing. Rodríguez-Morales, 647 F.3d at 398-99 (quoting

Fed. R. Crim. P. 11(d)(2)(B)) (assessing several factors in making

that determination); De Alba Pagan, 33 F.3d at 127 (same).

Where a defendant fails to raise a particular Rule 11

error before the district court, however, we review that claim for

plain error. United States v. Vonn, 535 U.S. 55, 58-59 (2002);

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United States v. Laracuent, 778 F.3d 347, 349 (1st Cir. 2015);

United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008).

To demonstrate plain error, the defendant must show "(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Laracuent, 778 F.3d at 349 (quoting

United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005));

see also Borrero-Acevedo, 533 F.3d at 15. To establish that the

defendant's substantial rights were affected, he "must show a

reasonable probability that, but for the error, he would not have

entered the plea." United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004); see also Borrero-Acevedo, 533 F.3d at 16.

Our review of the district court's denial of the

defendant's motion to appoint new counsel is for abuse of

discretion. United States v. Karmue, 841 F.3d 24, 31 (1st Cir.

2016). We will reverse a denial for abuse of discretion only after

considering (1) "the adequacy of the [trial] court's inquiry," (2)

"the timeliness of the motion for substitution," and (3) "the

nature of the conflict between the lawyer and client." Id.

(alteration in original) (quoting United States v. Myers, 294 F.3d

203, 207 (1st Cir. 2002)).

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A. Denial of the Motion to Withdraw the Guilty Plea

Valdez's first claim is that the district court failed

to ensure that he adequately understood the nature of the charged

offenses and erroneously determined that there was a factual basis

for the plea pursuant to Rule 11 of the Federal Rules of Criminal

Procedure. See Fed. R. Crim. P. 11(b)(1)(G), (b)(3). Assuming,

arguendo, that Valdez preserved this claim, the record makes clear

that the plea was in full compliance with Rule 11. Our earlier

description of the plea agreement and the change-of-plea hearing

disposes of this claim. See, e.g., United States v. Díaz-

Concepción, 860 F.3d 32, 37, 39 n.4 (1st Cir. 2017); United States

v. Ramos-Mejía, 721 F.3d 12, 14-16 (1st Cir. 2013). The district

court did not abuse its discretion in finding that there was no

fair and just reason for withdrawing the guilty plea given the

weakness of defendant's arguments and the timing of his motion.

See Rodríguez-Morales, 647 F.3d at 398-99 (explaining that "the

force of the reasons offered by the defendant" and "the timing of

the motion" are two of the factors courts consider in determining

whether to permit a defendant to withdraw a guilty plea prior to

sentencing (quoting United States v. Padilla-Galarza, 351 F.3d

594, 597 (1st Cir. 2003))).

Valdez's second argument is that the district court

failed to inquire adequately into the medication issue to ensure

that his plea was voluntary and intelligent. See United States v.

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Kenney, 756 F.3d 36, 46-47 (1st Cir. 2014); United States v. Parra-

Ibañez, 936 F.2d 588, 595-96 (1st Cir. 1991). This specific claim

was not raised before the district court, and thus we review it

for plain error. See Kenney, 756 F.3d at 45.

After Valdez informed the district court at the change-

of-plea hearing that he had not taken his anxiety medication that

day, the court followed up with questions directed at the

defendant's ability to think clearly despite not having done so.

Valdez answered that he was "aware of what's happening" and

"c[ould] think clearly." The court also observed Valdez's demeanor

and his apt responses to its questions. The court's inquiry was

clearly adequate. See id. at 46-47.

Furthermore, Valdez makes no attempt to show a

reasonable probability that, but for this alleged error, he would

not have entered the plea agreement. Given the strength of the

evidence against him, as well as the substantial benefit conferred

by the plea agreement -- avoiding a mandatory life sentence -- it

is highly doubtful that Valdez would have rejected that agreement.

The defendant's third claim is that the district court

erred in finding that he understood the period of incarceration

which would result from the plea agreement. That argument is only

referenced briefly in the defendant's summary of argument, is not

further developed, and so is waived. GGNSC Admin. Servs., LLC v.

Schrader, 958 F.3d 93, 95 (1st Cir. 2020). Even if the claim were

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not waived, the plea agreement, Valdez's acknowledgment of the

plea agreement, and the discussion at the change-of-plea hearing

demonstrate that Valdez was fully aware of the period of

incarceration he was facing when he pleaded guilty.

B. Denial of the Motion to Appoint New Counsel

Valdez argues that the district court abused its

discretion in denying his motion for new court-appointed counsel.

This claim of error too is meritless. As the district court noted,

five months earlier Valdez had expressed his satisfaction with his

attorney.3 Furthermore, he waited without justification until the

sentencing hearing to file his motion. See, e.g., Karmue, 841

F.3d at 31 (concluding that the fact the motion was made just two

days before sentencing militated against granting it); United

States v. Myers, 294 F.3d 203, 207 (1st Cir. 2002) (same for a

motion filed five days before sentencing without any explanation

for failure to file sooner).

The district court did inquire and hear from both Valdez

and his attorney as to the existence and nature of the alleged

conflict between them. The court appropriately considered the

3 The motion at the sentencing hearing was not merely a
continuation of the defendant's first motion to substitute counsel
filed in January 2018. The appeal of the denial of that motion
was voluntarily dismissed after Valdez entered the plea agreement
with the assistance of counsel. This is not a situation where the
defendant consistently objected to the effectiveness of counsel
over a significant period of time. Cf. United States v. Kar, 851
F.3d 59, 65 (1st Cir. 2017).

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defendant's previous frivolous attempt to obtain new counsel,

defense counsel's own statement that he did not believe there was

a conflict, defense counsel's reputation, and its own observations

of defense counsel's adequate representation of Valdez. See, e.g.,

United States v. Kar, 851 F.3d 59, 65-66 (1st Cir. 2017); Karmue,

841 F.3d at 31; United States v. Hicks, 531 F.3d 49, 51-52, 54-55

(1st Cir. 2008).

Nothing in the record shows an actual conflict or "total

lack of communication" between Valdez and his attorney which

"prevent[ed] an adequate defense." Kar, 851 F.3d at 66 (quoting

United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)). Defense

counsel had discussed the plea agreement and its consequences with

Valdez numerous times, which Valdez acknowledged at the change-

of-plea hearing.

The district court did not err in denying both motions.

Affirmed.

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