United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION TO VACATE
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court pursuant to Mr. Quintero-Rodriguez's Motion to Vacate (# 717) pursuant to 28 U.S.C. § 2255 and the Government's response (# 724); and Mr. Quintero-Rodriguez's Motion for Return of Property (# 731), and the Government's response (#33).
Mr. Quintero-Rodriguez, among others, was indicted on October 6, 2011 (# 1), and subsequently charged with a variety of drug trafficking offenses under 21 U.S.C. § 841. After extensive pretrial proceedings and on the eve of trial, Mr. Quintero-Rodriguez filed a Notice of Disposition (# 430) in November 2012. The Court held a change of plea hearing with Mr. Quintero-Rodriguez, beginning on March 12, 2013 (# 488) and completed on March 20, 2013 (#499). Mr. Quintero-Rodriguez pled guilty to four counts in the Superseding Indictment - one count of conspiracy to distribute a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(A), and 21 U.S.C. § 846; one count of aiding and abetting the distribution of a controlled substance, 21 U.S.C § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2; and two counts of distributing a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(B). In exchange for his plea, the Government agreed to recommend a sentence of 11 years, as well as other concessions; Mr. Quintero-Rodriguez waived his right to appeal his sentence except under certain conditions.
Thereafter, Mr. Quintero-Rodriguez twice moved (# 558, 601) to withdraw his plea, alleging that his counsel "grossly misled" him and "used coercion tactics to scare [him] into taking a plea." On July 24, 2013, the Court heard these motions and denied them. The Court then proceeded to sentence Mr. Quintero-Rodriguez. Although the range recommended by the Sentencing Guidelines was at least 168 to 210 months of imprisonment, the Government recommended that the Court depart downward and sentence Mr. Quintero-Rodriguez to the statutory minimum term of 10 years. The Court did so.
Mr. Quintero-Rodriguez immediately filed a pro se Notice of Appeal (# 615). The 10th Circuit directed Mr. Quintero-Rodriguez's trial counsel to address any colorable issues on appeal, and counsel instead filed an Anders brief, stating his belief that Mr. Quintero-Rodriguez had no non-frivolous grounds to raise in light of the appeal waiver contained in the plea agreement. The 10th Circuit reviewed the record and agreed, finding that Mr. Quintero-Rodriguez had knowingly and voluntarily entered into the plea (including the appeal waiver) and that the sentence imposed by the Court did not fall within the exceptions to that waiver. Thus, the 10th Circuit dismissed (# 712) Mr. Quintero-Rodriguez's appeal.
Mr. Quintero-Rodriguez then filed the instant Motion to Vacate (# 717) pursuant to 28 U.S.C. § 2255. He raises four grounds: (i) that his trial counsel "was ineffective by failing to properly advise [him of his] constitutional rights, " resulting in his guilty plea not being knowing and voluntary; (ii) that his counsel was ineffective because "there was not [a] factual basis for a guilty plea as the evidence was insufficient to sustain [a] conviction, " insofar as "there is no direct or circumstantial evidence that proves [his] intent to knowingly participate in a conspiracy"; (iii) that his trial counsel rendered ineffective assistance in "not providing [him] an opportunity to allocute" at sentencing; and (iv) that his counsel rendered ineffective assistance by failing to file a timely Notice of Appeal.
Separately, Mr. Quintero-Rodriguez filed a Motion for Return of Property (# 731), seeking the return of "$50 in currency and $60.00 Mexican Pesos as well as personal identifications with his wallet" seized from him at the time of his arrest. He contends that this property "is [not] proceeds gained from" the crimes for which he was convicted. The Government responds (# 733) that any seizure of Mr. Quintero-Rodriguez's property at the time of his arrest was effectuated by agents of the Customs and Border Patrol at a time when Mr. Quintero-Rodriguez was attempting to enter the United States from Mexico, and that, in consultation with that agency, the Government is authorized to state that "no property of this defendant was received or seized in this District."
A. Standard of review
Mr. Quintero-Rodriguez's filings are pro se. Accordingly, the Court liberally construes those filings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
B. Motion to vacate
The Court turns first to Mr. Quintero-Rodriguez's motion to vacate under 28 U.S.C. § 2255. Two of the grounds he raises may be summarily rejected. Mr. Quintero-Rodriguez contends that he was not given a chance to allocute at sentencing. The record flatly contradicts this assertion. After ...