Judges: Per Curiam
Filed: Jun. 24, 2016
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 26, 2016 Decided June 24, 2016 Before MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-2351 Appeal from the United States District MELECIO FLORES, Court for the Southern District of Indiana, Petitioner-Appellant, Indianapolis Division. v. No. 1:13-cv-1679-WTL-DML UNITED
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 26, 2016 Decided June 24, 2016 Before MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 14-2351 Appeal from the United States District MELECIO FLORES, Court for the Southern District of Indiana, Petitioner-Appellant, Indianapolis Division. v. No. 1:13-cv-1679-WTL-DML UNITED ..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 26, 2016
Decided June 24, 2016
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐2351
Appeal from the United States District
MELECIO FLORES, Court for the Southern District of Indiana,
Petitioner‐Appellant, Indianapolis Division.
v. No. 1:13‐cv‐1679‐WTL‐DML
UNITED STATES OF AMERICA, William T. Lawrence,
Respondent‐Appellee. Judge.
O R D E R
Melecio Flores pleaded guilty to two drug‐conspiracy charges and one gun
charge pursuant to a binding plea agreement that subjected him to 180 to 300 months’
imprisonment and required him to waive his rights to appeal and to collaterally attack
his sentence. He was sentenced to 216 months, and we dismissed his appeal based on
the appeal waiver contained in his then‐uncontested guilty plea. United States v. Flores,
485 F. App’x 141 (7th Cir. 2012). Flores then moved to vacate his sentence under
28 U.S.C. § 2255, and the district court denied relief based on the collateral‐attack
waiver. We certified the appeal to consider whether his guilty plea was voluntary. We
conclude that it was and that Flores therefore has waived his right to bring this § 2255
motion.
No. 14‐2351 Page 2
I. Background
Flores, a 43‐year‐old native of Mexico, was indicted in September 2010 and was
represented by appointed counsel during plea negotiations. Thirteen months and three
superseding indictments later, he was charged with a total of six drug and gun offenses.
Flores asked for new counsel in November 2011, but after a hearing the district court
denied his request. Later that day, the government agreed to drop three of the charges,
and Flores agreed to plead guilty to conspiring to distribute 50 grams or more of
methamphetamine, 21 U.S.C. §§ 841(a)(1), 846; conspiring to launder marijuana
proceeds, 18 U.S.C. § 1956(h); and possessing a firearm in furtherance of a drug
trafficking crime, id. § 924(c). He signed a binding plea agreement, see FED. R. CRIM.
P. 11(c)(1)(C), that subjected him to an aggregate term of imprisonment between 180
and 300 months and acknowledged that his plea likely would result in his deportation.
The agreement also included a broad waiver of his rights to appeal and to collaterally
attack his sentence:
Defendant understands that he has a statutory right to appeal the
conviction and sentence imposed and the manner in which the sentence
was determined. Acknowledging this right and in exchange for the
concessions made by the Government in this Plea Agreement, Defendant
expressly waives his right to appeal the conviction and any sentence
imposed on any ground, including the right to appeal conferred by
18 U.S.C. § 3742. Additionally, he also expressly agrees not to contest his
conviction or sentence or seek to modify his sentence or the manner in
which it was determined in any type of proceeding, including, but not
limited to, an action brought under 28 U.S.C. § 2255.
Three days later the district judge conducted a change‐of‐plea hearing—with a
Spanish interpreter for Flores—during which a detective testified to establish the factual
basis for the plea. The judge explained Flores’s rights, the waiver provisions, and the
charged crimes, and Flores repeatedly stated that he understood the judge and agreed
to waive his rights. He disputed, though, some of the detective’s testimony concerning
the charge for conspiracy to distribute methamphetamine. Defense counsel interjected
and explained to the judge that although counsel believed that “the factual basis is
sound,” Flores wanted “to have his sort of say as far as what he disagrees with as far as
No. 14‐2351 Page 3
the evidence” because, counsel explained, “he was not caught with any items in his
hands nor any money in his hands.”
After the prosecuting attorney expressed discomfort “with Mr. Flores’ blanket
statement that there were a lot of things that weren’t true,” Flores and his lawyer
conferred off the record. His counsel then offered to “try to elicit a simplified factual
basis from my client directly” because, counsel said, “when I speak with my client[,] he
is willing to admit to me that he was involved in each of these transactions of
methamphetamine … . I think it’s when we get into the details provided by the
government that my client finds those to be so abrasive.” The judge permitted counsel
to question Flores; counsel asked whether he had “played a role in arranging” the two
meth transactions at issue, and Flores agreed that he had. Based on the detective’s and
Flores’s testimony, the judge found a factual basis for each of the charges and, per the
judge’s usual practice, took the guilty plea under advisement.
Three months later Flores’s lawyer moved to withdraw based on “an
irretrievable [breakdown] in the attorney‐client relationship.” The district court granted
the motion and appointed new counsel to represent Flores. At the sentencing hearing
the next month, the judge calculated an offense level of 41 and a criminal‐history
category of I, resulting in a guidelines range of 324 to 405 months’ imprisonment. But
the judge opted to accept Flores’s plea, and bound by the plea agreement to impose a
sentence of 180 to 300 months, see United States v. Scott, 711 F.3d 784, 786 (7th Cir. 2013),
the judge ordered him to serve 216 months’ imprisonment—156 months on each drug‐
conspiracy charge to run concurrently, plus a statutorily mandated consecutive 60
months on the gun charge.
Despite the appeal waiver, Flores filed a notice of appeal. Counsel moved to
withdraw, see Anders v. California, 386 U.S. 738 (1967), and informed this court that he
had consulted with Flores regarding challenging his plea but that Flores had “indicated
to counsel that he did not wish to do so.” We dismissed the appeal, concluding that
“Flores’s broad waiver of the right to appeal makes this case frivolous,” particularly
because “Flores does not seek to have his pleas vacated or challenge his plea
agreement.” Flores, 485 F. App’x at 142.
Flores then moved for relief under § 2255, claiming that his guilty plea had been
involuntary and that trial and appellate counsel had provided ineffective assistance. His
plea was involuntary, he asserted, because he was poorly educated (he attended school
in Mexico through sixth grade), the Spanish interpretation at his hearing may have been
No. 14‐2351 Page 4
inaccurate, and his trial counsel had refused to withdraw (until Flores turned to the
district judge) and instead threatened to “make sure” that Flores would “suffer.” Flores
contended that although he did not understand the judge at many points during the
plea hearing, he simply had “answered the judge as [he] was told to do by” his lawyer.
He also asserted that trial counsel was ineffective for failing to request a transcript of
the Spanish interpretation at the plea hearing, properly cross‐examine the detective, or
advise Flores that pleading guilty would lead to his deportation. Moreover, Flores
averred that appellate counsel never consulted him regarding his appeal and was
ineffective for failing to challenge his sentence. The government responded that Flores’s
waiver of postconviction relief barred his claims.
The district court denied the § 2255 motion on the basis of the collateral‐attack
waiver contained in the plea agreement and denied a certificate of appealability. The
judge observed that he already had warned Flores of his probable deportation and had
found at the plea hearing that Flores’s plea was knowing, voluntary, and supported by
an adequate factual basis. Therefore, the judge explained, “Flores’ contentions contrary
to these findings are unpersuasive because they depend on a finding [that] the words
used at the guilty plea proceeding had no meaning or a meaning opposite to the
meaning given to them through the customary usages of our language.”
We certified for appeal the question whether Flores’s guilty plea was voluntary
and instructed the parties to “address whether appellate counsel misstated that Flores
did not wish to challenge his guilty pleas on direct appeal.”
II. Discussion
In evaluating the denial of a § 2255 motion, we review the district court’s factual
findings for clear error, its legal conclusions de novo, and its decision to forgo an
evidentiary hearing for abuse of discretion. See Gant v. United States, 627 F.3d 677, 681
(7th Cir. 2010); Hutchings v. United States, 618 F.3d 693, 700 (7th Cir. 2010). We first note
that although Flores did not challenge the voluntariness of his guilty plea on direct
appeal, as is generally required before doing so on collateral review, see Bousley v.
United States, 523 U.S. 614, 621 (1998); Torzala v. United States, 545 F.3d 517, 522 (7th Cir.
2008), the government forfeited a procedural‐default defense by not raising it before the
district court and instead arguing only that his waiver barred any and all collateral
claims, see Torzala, 545 F.3d at 522; Buggs v. United States, 153 F.3d 439, 444 (7th Cir.
1998). Even so, we agree with the district court that the broad collateral‐attack waiver in
Flores’s guilty plea bars this suit, and his plea undoubtedly was voluntary.
No. 14‐2351 Page 5
Flores argues that his plea was involuntary because his lawyer pressured him to
plead guilty without explaining the consequences of doing so. But the district judge
cured any alleged deficiency by complying with Federal Rule of Criminal
Procedure 11(b) during the plea colloquy. See Vinyard v. United States, 804 F.3d 1218,
1226 (7th Cir. 2015). The judge—through a Spanish interpreter—explained the nature of
the charges, told Flores the consequences of pleading guilty (including the waivers of
his rights to appeal and to collaterally attack his sentence), explained the statutory
minimum sentences, advised him that he likely would be deported based on the
convictions, and determined that a factual basis for the plea existed. See United States v.
White, 597 F.3d 863, 868 (7th Cir. 2010); United States v. Blalock, 321 F.3d 686, 688–89
(7th Cir. 2003). And despite Flores’s assertions to the contrary, there is no evidence that
the Spanish interpretation was flawed or that his lack of education hindered his ability
to understand the judge. A “defendant is normally bound by the representations he
makes to a court during the colloquy,” Hutchings, 618 F.3d at 699, and Flores repeatedly
stated under oath that he understood the judge, the proceedings, and his rights, and—
despite quibbling over specifics on the meth charge—he offered his guilty plea, as he
said, “[b]ecause I am guilty.”
Nonetheless, Flores maintains, this court must consider not only his plea
colloquy but also must look “beyond the transcript of the plea hearing to all the
surrounding facts and circumstances.” Haase v. United States, 800 F.2d 123, 127 (7th Cir.
1986); see also United States v. Cruse, 805 F.3d 795, 805 (7th Cir. 2015). Flores points to his
affidavit submitted in support of the § 2255 motion, in which he avers that trial counsel
did not explain the terms of the plea agreement, refused to share discovery materials,
and when Flores asked him to withdraw, threatened Flores. But again, the judge
compensated for any alleged inaction by thoroughly explaining the charges and the
terms of the plea agreement, and Flores told the judge that he understood and that he
was satisfied with his lawyer’s representation. Flores now insists that he simply
“answered the judge as [he] was told to do” because his lawyer had pressured him to
plead guilty “whether [he] wanted to or not.” This is false: Several times Flores
disputed the detective’s testimony and asked the judge questions, thereby
demonstrating that he knew he could disagree when warranted. Flores contends that
his lawyer’s coercion is further demonstrated by the fact that his lawyer withdrew a few
months after the plea hearing. But Flores was appointed new counsel before sentencing
(and before the judge accepted the plea), and he offers no explanation for why that
lawyer did not move to withdraw his plea. Flores’s weak “after‐the‐fact explanation”
does not “override the verity that presumptively attaches to a defendant’s statements
when entering a guilty plea.” Hutchings, 618 F.3d at 699. Accordingly, because Flores’s
No. 14‐2351 Page 6
guilty plea was voluntary, he is bound by the collateral‐attack waiver to which he
agreed. See Nunez v. United States, 546 F.3d 450, 454 (7th Cir. 2008).
Finally, the district court did not abuse its discretion by declining to hold an
evidentiary hearing on the § 2255 motion because, as discussed above, the record
conclusively shows that Flores is not entitled to relief. See 28 U.S.C. § 2255(b); Boulb v.
United States, 818 F.3d 334, 339 (7th Cir. 2016) (“Not every petitioner who seeks relief
pursuant to § 2255 is entitled to an evidentiary hearing.”).
Accordingly, we AFFIRM the district court’s judgment.