JON E. DEGUILIO, District Judge.
Now before the Court is a Rule 11(d)(2)(B) motion filed by Defendant Victor Hugo Martinez-Lopez to withdraw his plea of guilty to two counts of distribution of methamphetamine. [DE 46]. Mr. Martinez-Lopez asserts that withdrawal of his plea is warranted because his prior attorney did not properly advise him of the impact the drug-quantity stipulation in his plea agreement would have on his sentencing guidelines calculation. He further argues that he did not understand the impact of the Government's 21 U.S.C. §851 filing, which increased the statutory maximum penalties for the offenses to which he pled. For the reasons that follow, the Court concludes that Mr. Martinez-Lopez's motion is not well taken.
On September 9, 2015, Defendant Victor Hugo Martinez-Lopez was indicted on three counts relating to the distribution of methamphetamine. [DE 9]. On October 21, 2015, the Government filed a notice under 21 U.S.C. § 851, indicating that those counts would carry enhanced statutory penalties due to Mr. Martinez-Lopez's 2004 conviction for delivery of cocaine. [DE 16]. Shortly thereafter, Mr. Martinez-Lopez agreed to plead guilty to two counts of the indictment, both of which charge distribution of methamphetamine in violation of 21 U.S.C. §841(a)(1). The plea agreement contained a provision providing that "the parties stipulate that the defendant's relevant conduct includes the distribution of 45 kilograms of methamphetamine[.]" [DE 17 at 5].
Magistrate Judge Christopher A. Nuechterlein then held a change of plea hearing, during which the Court engaged in a lengthy Rule 11 colloquy with Mr. Martinez Lopez. In it, Mr. Martinez-Lopez indicated that he had read his plea agreement, discussed it with his attorney and understood it. [DE 22]. He further indicated he understood that: (1) both counts in his plea carried a maximum statutory penalty of thirty years imprisonment, (2) despite whatever his attorney told him regarding his guidelines calculation, the Court would determine his guidelines range, (3) Probation would conduct an investigation to facilitate the Court's guidelines calculation, which would include consideration of the nature and quantity of drugs he sold, (4) the Court has the power to deviate from whatever it ultimately determines to be the proper guidelines range and (5) if he receives a sentence more severe than he thought he was going to get, what his attorney told him or what the guidelines recommend, it will not be grounds for withdrawing his plea. Id.
Following this hearing, Magistrate Judge Nuechterlein concluded that Mr. Martinez-Lopez's plea was knowing and voluntary and recommended that the district court accept it. [DE 22]. The parties did not object to that recommendation and this Court subsequently accepted the plea on November 6, 2015, finding Mr. Martinez-Lopez guilty of Counts 1 and 2 of the Indictment. [DE 24]. A presentence report issued on February 16, 2016, which attributed 45 kilograms of methamphetamine to Mr. Martinez-Lopez and accordingly calculated his base offense level as 38 under U.S.S.G. § 2D1.1(c). Three days later, Mr. Martinez-Lopez discharged his retained counsel and the Court appointed new counsel for him. [DE 36, 38].
New counsel then filed the instant motion to withdraw Mr. Martinez-Lopez's guilty plea on April 4, 2016. [DE 46]. It raises two grounds for withdrawing the plea: (1) that Mr. Martinez-Lopez was unaware prior to receiving his presentence report that his stipulation to a drug quantity of 45 kilograms of methamphetamine would elevate his base offense level by 14 levels to 38 (as compared to the base offense level of 24, which would have been appropriate had Mr. Martinez-Lopez distributed only the 84 grams of methamphetamine described in the two controlled buys outlined in the plea agreement) and (2) that Mr. Martinez-Lopez did not understand the impact of the Government's 21 U.S.C. § 851 filing, which increased the statutory maximum period of imprisonment for his offenses from 20 to 30 years, prior to pleading guilty. [DE 46]. The defense somewhat conflates these contentions, asserting that the Government's § 851 notice added 14 levels to Mr. Martinez-Lopez's guidelines calculation. But, since that is not true (the § 851 notice simply increased Mr. Martinez-Lopez's maximum statutory sentence, while Mr. Martinez-Lopez's base offense level was based on the plea agreement's drug quantity stipulation) and these are distinct arguments, the Court addresses them separately. The parties have now briefed this motion and it is ripe for review. [DE 48, 49, 50].
Rule 11 of the Federal Rules of Criminal Procedure governs the Court's acceptance of, and a defendant's ability to withdraw, a plea of guilty. The rule states, in relevant part: "A defendant may withdraw a plea of guilty or nolo contendere: . . . (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d). Here, the Court did not reject the plea agreement, so subsection (A) is not available to Mr. Martinez-Lopez. Therefore, unless Mr. Martinez-Lopez can demonstrate a "fair and just reason" for withdrawing his guilty plea, the plea will stand.
Ineffective assistance of counsel can render a plea involuntary. To show ineffective assistance of counsel, a defendant "must show both that the counsel's performance was objectively unreasonable and that, but for counsel's errors, the defendant would not have pled guilty." United States v. Peliti, 576 F.3d 377, 383 (7th Cir. 2009) (quoting United States v. Lundy, 484 F.3d 480, 484 (7th Cir. 2007)). If such a showing is made, then the ineffective assistance is a "valid basis for withdrawing a guilty plea." Id.
Mr. Martinez-Lopez first argues that his previous attorney did not adequately advise him of the impact his drug quantity stipulation would have on his guidelines calculation. Specifically, he says his prior counsel failed to recognize the impact of the plea agreement's stipulation to a drug quantity of 45 kilograms of methamphetamine, which the presentence report invoked to calculate a base offense level of 38, a total offense level of 39 and a resulting advisory imprisonment range of 324 to 405 months. In contrast, Mr. Martinez-Lopez says his attorney led him to believe that a 108-month sentence was a "worst case scenario." [DE 49 at 2]. Mr. Martinez-Lopez asserts that his resulting misunderstanding as to his probable term of imprisonment is a fair and just reason to permit withdraw of his plea.
That argument is foreclosed by Seventh Circuit law. The Seventh Circuit "has consistently held that the fact that a defendant underestimated his sentence when entering his plea is not a fair and just reason to permit him to withdraw that guilty plea." United States v. Redmond, 667 F.3d 863, 872 (7th Cir. 2012). This is true even where the defendant's misunderstanding is caused by his counsel's faulty advice. United States v. Tollinchi-Rodriguez, No. 15-3720, 2016 WL 3006879, at *2 (7th Cir. May 25, 2016) (unpublished) (finding that any appeal of a district court's denial of a defendant's motion to withdraw his plea would be frivolous where the "only reason [the defendant] gave for asking to withdraw his plea was that his attorney did not warn him about the possibility of such a high recommended sentence"); United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006) (finding that a defendant may not withdraw a plea based on a misunderstanding of the sentencing guidelines where a proper Rule 11 colloquy is conducted "even where the misunderstanding is caused by defense counsel's erroneous estimation of what the ultimate sentence will be").
Indeed, even if the Seventh Circuit had not expressly rejected defense counsel's argument, it would not be viable. Ineffective assistance of counsel can be a basis for withdrawing a plea if "counsel's performance was objectively unreasonable and that, but for counsel's errors, the defendant would not have pled guilty."
As to the first of these criteria, ordinarily the inaccurate prediction of a sentence "does not demonstrate the deficiency component of an ineffective assistance of counsel claim." United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999); see also United States v. Fuller, 312 F.3d 287, 293 (7th Cir. 2002).
There is no indication that, absent counsel's erroneous advice, he would not have pled guilty. In deciding whether to plead guilty or go to trial, a defendant may consider advice from his attorney as to his probable sentence. If an attorney substantially mischaracterizes the defendant's probable sentence, it can thus impact the defendant's plea decision. Bethel, 458 F.3d at 719.
But Mr. Martinez-Lopez's allegation of faulty advice does not stand alone. Here, Magistrate Judge Nuechterlein advised Mr. Martinez-Lopez in a Rule 11 colloquy (the propriety of which defense counsel does not challenge) that: (1) regardless of any advice provided by counsel, the Court would independently determine his guidelines range; (2) Probation would conduct an investigation to facilitate the Court's guidelines calculation which would include consideration of the nature and quantity of drugs he sold; (3) he faced a maximum sentence of thirty years in prison on each count and (4) if he received a sentence more severe than he was expecting he would not be permitted to withdraw from his plea. Mr. Martinez-Lopez represented that he understood these things, and further stated that he was not relying on any promises made to him not contained in the written plea agreement. The Court is entitled to hold him to those representations. United States v. Patterson, 576 F.3d 431, 437 (7th Cir. 2009).
A plea colloquy may not invariably remove the prejudice of a lawyer's erroneous advice. See, e.g., Moore v. Bryant, 348 F.3d 238, 243 (7th Cir. 2003) (granting defendant's petition for post-conviction relief where the defendant's attorney provided erroneous sentencing advice and nothing in the plea colloquy addressed whether the defendant's plea was based on any predictions as to his sentence). Here, however, Mr. Martinez-Lopez explicitly indicated that he understood he could get a sentence greater than his attorney advised and that he was not relying on any promises not contained within the plea agreement. As such "he cannot now be heard to complain that he would not have pled guilty if he had known his sentence would be more severe than his lawyer predicted. He specifically disclaimed that risk at his change of plea hearing." Bethel, 458 F.3d at 718; see also Jacobson v. United States, 258 F. App'x 45, 50 (7th Cir. 2007) (unpublished) (finding no prejudice where the defendant received inaccurate sentencing advice from his attorney, but testified at the plea hearing that he was not relying on a particular sentence in pleading guilty and swore that no one had made any promises to him other than those in the plea agreement); Martinez, 169 F.3d at 1053-54 (finding no prejudice where the defendant represented that nobody, including his lawyer had "made any promise or assurance to [him] of any kind in an effort to induce or cause [him] to enter into a plea of guilty").
The lack of prejudice to Mr. Martinez-Lopez is further underscored by the strength of the Government's case against him. The Government represents that Immigration and Customs Enforcement agents arrested Mr. Martinez-Lopez after he sold methamphetamine in two controlled buys arranged by law enforcement. Mr. Martinez-Lopez then received his Miranda rights and confessed to transporting methamphetamine from Texas to Indiana in eight trips at a quantity of eight to nine kilograms of methamphetamine per trip. [DE 50 at 9]. He has not contested that admission. Indeed, he agreed that it was correct in the plea agreement. In the face of this evidence, it appears highly unlikely that Mr. Martinez-Lopez would have elected to go to trial. That further suggests that his attorney's advice did not prejudice his decision to plead guilty. See Bethel, 458 F.3d at 720 ("It is unlikely [the Defendant] would have insisted on going to trial in any case because, shortly after his arrest, he confessed to selling hundreds of pounds of marijuana."); United States v. Teller, 762 F.2d 569, 578 (7th Cir. 1985) (noting the importance of probable outcomes in a defendant's decision to plead or go to trial).
That leaves Mr. Martinez-Lopez's argument that he did not understand the impact of the Government's 21 U.S.C. § 851 notice, since it was filed shortly before his plea.
As noted above, however, the record in this case clearly indicates that Mr. Martinez-Lopez was aware that he was facing a thirty-year sentence on each § 841 count. Magistrate Judge Nuechterlein advised him that those counts carry thirty-year maximums, which Mr. Martinez-Lopez acknowledged. Furthermore, contrary to defense counsel's representation that "the [plea] agreement did not discuss the potential effect of the Section 851 filing," [DE 49 at 3], the parties' agreement expressly states that each charge against Mr. Martinez-Lopez carries a potential 30 year term of imprisonment. [DE 17 at 3-4]. And at the change of plea hearing, Mr. Martinez-Lopez stated under oath that he had reviewed this agreement, understood it and had discussed it with his attorney. To the extent that defense counsel did not adequately appraise Mr. Martinez-Lopez of the term of imprisonment he faced, the Rule 11 advisals he received certainly did. See United States v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004) (rejecting defendant's argument that he should be permitted to withdraw his plea since his attorney falsely duped him into believing he would receive only ten years in prison in light of thorough and fair Rule 11 colloquy); United States v. Morgan, 398 F. App'x 497 (11th Cir. 2010) (unpublished) (finding that counsel's inaccurate advice as to the probable effect of an § 851 notice did not justify plea withdrawal, where the defendant was accurately advised of potential statutory penalties in a Rule 11 colloquy). Further, Mr. Martinez-Lopez's sworn testimony that he understood the information provided to him in the Rule 11 proceeding renders his present assertion that he did not unavailing. Patterson, 576 F.3d at 437 (the Court is "generally justified in discrediting the proffered reasons for the motion to withdraw and holding the defendant to [his] admissions at the [plea colloquy].") (quoting United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995)); Thompson v. United States, 732 F.3d 826, 829 (7th Cir. 2013) ("a motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction."). Accordingly, the Court finds that Mr. Martinez-Lopez's proffered misunderstanding of the § 851 notice is not a fair and just reason to permit him to withdraw his plea.
For the reasons stated above, the Court finds that Mr. Martinez-Lopez's allegations do not provide a fair and just reason for withdrawing his plea of guilty. The motion to withdraw his guilty plea [DE 46] is therefore
SO ORDERED.
