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United States v. Avelar

United States District Court, Central District of California

November 3, 2014

United States of America
Jose Avelar, Defendants

Attorneys for Defendants: Michael Emmick.



A. Introduction and Background

Defendant Jose Avelar (“Avelar”) has been indicted in two cases: United States v. Jose Avelar, CR 13-781-GAF and United States v. Jose Avelar, et al., CR 13 -817-GAF.[1] In the 781 case, he is charged with the distribution of 12.9 grams of methamphetamine [27.8 grams gross weight]; in the 817 case, he is charged in two counts. Count One charges a distribution of 26.6 grams of methamphetamine; Count Six charges a distribution of 131.5 grams of methamphetamine. Through counsel, Deputy Federal Public Defender Naeun Rim, Avelar negotiated a plea agreement under which he agreed to plead guilty to the charge in the 781 case in exchange for the dismissal of the charges brought against him in the 817 case. The government agreed that it would not contend that the 26.6 gram transaction was relevant conduct, but indicated in the agreement that it would argue that the 131.5 gram transaction should be considered relevant conduct. The Court, after a detailed Rule 11 colloquy, accepted the guilty plea and set the matter for sentencing.

Avelar now moves to withdraw his guilty plea. Although his supporting memorandum cites two grounds in support of the motion, the motion actually identifies four grounds: (1) his attorney suffered from a conflict of interest that prevented him from receiving conflict free advice of counsel regarding the government’s plea offer; (2) his plea was involuntary because his attorney failed to adequately advise him of the terms of the plea agreement; (3) he received inadequate assistance from the Court’s interpreters which made it difficult for him to communicate with his attorney and to understand the plea colloquy; and (4) he anticipated a lower sentence than recommended by the government and the Probation Office and feels that he should not be held responsible for the amount of drugs transacted in the dismissed counts.[2]

As explained in greater detail below the Court concludes:

(1) No conflict of interest infected counsel’s ability to provide effective assistance to Avelar regarding the content to the government’s proposed plea agreement and Avelar’s determination to plead guilty;
(2) Avelar was fully advised regarding the terms of his plea agreement both by his counsel before he entered his guilty plea and by the Court during the Rule 11 colloquy;
(3) Avelar received adequate assistance from the Court’s interpreters and, with their assistance, was able to communicate with his counsel and with the Court regarding his desire to plead guilty, his understanding of the consequences of pleading guilty and his knowing, voluntary and intelligent waiver of his constitutional rights;
(4) Avelar was not promised a sentence lower than the U.S.S.G. range to get him to plead guilty, and understood that the government would argue that he should be held responsible for conduct described in dismissed counts in the 817 case.

Accordingly, Avelar’s motion to withdraw his guilty plea is DENIED.

B. Legal Standard

A defendant’s motion to withdraw a guilty plea is governed by Rule 11(d)(2) of the Federal Rules of Criminal Procedure. It provides:

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if: . . . .
(B) the defendant can show a fair and just reason for requesting the withdrawal.

United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005); United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). The decision to allow withdrawal of a guilty plea is a matter within the discretion of the district court, United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009); United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). A court abuses its discretion when its decision rests on an erroneous view of the law or is based on a clearly erroneous finding of fact.

A court need not find that a plea was invalid as a condition to granting relief under Rule 11(d)(2). Ortega-Ascanio, 376 F.3d at 884. “Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” Ortega-Ascanio, 376 F.3d at 883. That court held that it was error for the district court to require a showing that the plea was invalid as a condition to obtaining relief under Rule 11(d)(2)(B). Where the motion is based on newly discovered evidence, intervening circumstances, or any other reason that did not exist when the plea was entered, the defendant must show that the information or evidence would have “plausibly motivated a reasonable person in [defendant’s] position not to have pled guilty had he known about the evidence prior to pleading.” United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2008).

At the same time, the United States Supreme Court warns that a defendant’s change of heart does not require a trial court to bow to his wishes whenever he comes to regret his decision. United States v. Hyde, 520 U.S. 670, 676 (1997). In Hyde, the Supreme Court wrote:

“Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely ‘tentative, ’ subject to withdrawal before sentence whenever the government cannot establish prejudice. ‘Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a “grave and solemn act, ” which is “accepted only with care and discernment.” ’ ” [Citations.]

Id. at 676-77; see also United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). Thus, despite the admonition to apply Rule 11(d)(2) “liberally, ” the circuit, in affirming district court denials of motions to withdraw, has recognized that a defendant must make a real showing to obtain relief, which requires more than evidence of buyer’s remorse. Ensminger, 567 F.3d at 592-93 (out-of-circuit district court decision granting dismissal on commerce clause grounds not “intervening circumstance” requiring withdrawal of guilty plea); United States v. Showalter, 569 F.3d 1150, 1155 (9th Cir. 2009) (reassessment of strength of prosecution’s case not “intervening circumstance” or “newly discovered” evidence within the meaning of the rule); United States v. Briggs, 623 F.3d 724, 728 (9th Cir. 2010) (claimed lack of understanding of consequences of guilty plea, including potential severity of the sentence, not grounds for granting a motion to withdraw plea); United States v. Michlin, 34 F.3d 896, 899 (9th Cir. 1994) (defendant not permitted to withdraw guilty plea based on counsel’s erroneous prediction regarding court’s sentence). Likewise, counsel’s failure to raise or pursue meritless defenses or legal challenges to the prosecution’s case is not a ground for relief under Rule 11(d)(2)(B). Id. at 900-01.

With the legal standard in mind, the Court turns to Defendant’s motion.

C. Discussion

Avelar’s motion does not merit extended discussion. First, at the threshold the Court notes that Defendant does not challenge the adequacy of the plea colloquy and does not deny his involvement in the drug transaction to which he pled guilty. Indeed, he concedes that he arranged the transaction but now asserts that he has a defense to that charge – an apparent duress defense (which is not newly discovered) based on his alleged fear of a gang member who was apparently involved in the transaction. (Docket No. 57, Decl. Of Jose Avelar, at 2.) His concession is consistent with the factual basis of his plea agreement in which he stipulated that on November 5, 2008, he arranged the distribution of 12.9 grams of methamphetamine in exchange for $850 to a person who turned out to be a government informant. (Docket No. 63, Ex. A, at 5-6.) Having conceded these points, Avelar seeks to withdraw his guilty plea mainly because he has now gotten a look at the Probation Officer’s sentencing recommendation and the government’s sentencing argument and hopes to do better by contesting the charges brought against him. However, because the case law plainly holds that remorse is not a “fair and just” reason for withdrawing a guilty plea, he has decided to test the Court’s credulity with arguments that lack evidentiary support, and otherwise vary from improbable to preposterous.

(1) Counsel’s Conflict of Interest

Avelar’s current counsel was appointed three weeks after Avelar entered his guilty plea based on the Federal Public Defender’s Office having identified a conflict of interest that precluded further representation in the case. About three weeks later, in a declaration filed with the Court, Avelar’s then-counsel, Deputy Federal Public Defender Naeun Rim, stated:

On March 24, 2014, Hilary Potashner, the Chief Deputy of the Office of the Federal Public Defender, determined that our office cannot represent Mr. Avelar due to a conflict of interest. She instructed me to apprise the Court that there is a conflict of interest, and to seek relief and appointment of new counsel for Mr. Avelar.

(Docket No. 39, ¶ 5.) On March 31, 2014, the Court granted the request to withdraw as counsel and appointed current counsel. Avelar now attacks the validity of his plea agreement based on this conflict of interest.

Although, as discussed below, Ms. Rim has provided information in interrogatory answers regarding the conflict of interest issue, the Court need not rely on those answers to address Avelar’s argument. Ms. Rim’s March declaration did not indicate that she knew of any conflict of interest at the time that the plea agreement was negotiated or that she was in any way affected by the conflict of interest. Avelar offers no other evidence that Ms. Rim was aware of any conflict of interest when she advised him regarding the plea offer, or that the conflict of interest even existed at the time he entered the plea. Moreover, Avelar offers no evidence as to how the purported conflict affected his counsel’s advice, or whether and why, absent the conflict, he would have been advised not to accept the government’s plea offer.

Ms. Rim has now provided information that demonstrates that the conflict was unknown when the plea was negotiated and the Rule 11 colloquy was conducted. The evidence creating the conflict was disclosed by Avelar in Ms. Rim’s presence during a proffer session with the government after he had entered his guilty plea. (Docket No. 71, at 21.) At that session, Avelar claimed that he had information regarding a gang member named “Activo, ” another client of the Federal Public Defender, including information that would implicate him in a pending case. (Id.) That information was communicated to the Chief Deputy Public Defender who then determined that a potential conflict existed and that the Federal Public Defender should avoid representing either ...

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