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United States v. Aparicio-Marquez

United States District Court, Fourth Circuit

December 16, 2013

ADAN APARICIO-MARQUEZ, Defendant. Civil Action No. 5:12CV80463


GLEN E. CONRAD, District Judge.

Defendant Adan Aparicio-Marquez, a federal inmate proceeding pro se, filed this action as a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The case is presently before the court for review of the defendant's motion, the report and recommendation of United States Magistrate Judge B. Waugh Crigler, and the defendant's objection to the report. For the reasons that follow, the court will overrule the defendant's objection, adopt the magistrate judge's report and recommendation, and deny the defendant's § 2255 motion.


On October 7, 2010, Aparicio-Marquez was named in a one-count indictment returned by a grand jury in the Western District of Virginia. The indictment charged that the defendant possessed with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On February 3, 2011, a grand jury in the Western District of Virginia returned a six-count superseding indictment against Aparicio-Marquez, charging him with one count of conspiring to distribute 500 grams or more of cocaine; four counts of cocaine distribution; and one count of possessing cocaine with the intent to distribute, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b) and 846. William W. Eldridge, Esq. was appointed to represent Aparicio-Marquez during the criminal proceedings.

On June 6, 2011, Aparicio-Marquez entered a plea of guilty to the four distribution counts in the superseding indictment, pursuant to a written plea agreement. By signing the agreement, the defendant certified that he was pleading guilty because he was, in fact, guilty of the offenses charged and not because of any threats or promises; that he had discussed the plea agreement and all other matters pertaining to the indictment with his attorney; and that he was fully satisfied with his attorney and the attorney's advice. (Plea Ag. at 2, 10-11.) Under the terms of the plea agreement, Aparicio-Marquez agreed that each count carried a maximum statutory penalty of imprisonment for a term of twenty (20) years. (Id. at 1-2.) He also agreed to accept responsibility for his conduct, for which the government promised to recommend a two-level offense level reduction. (Id. at 4.) Further, he acknowledged that the government "retain[ed] all of its rights pursuant to Fed. R. Crim. P. 35(b), U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), " but that it was "under no obligation to make a motion for the reduction of [his] sentence." (Id.) Additionally, Aparicio-Marquez agreed to waive his right of direct appeal under 18 U.S.C. § 3742(a) and his "right of appeal as to any and all other issues in this matter." (Id. at 8.) He expressly agreed to "not file a notice of appeal." (Id.)

This case was referred to Magistrate Judge James G. Welsh for the purpose of conducting a plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. During the hearing, the magistrate judge established that Aparicio-Marquez possessed the competence and capacity to make an informed plea.[1] (Guilty Plea Report & Recommendation at 3, 11.) The magistrate judge also established that the defendant understood the nature of the charges to which he was pleading guilty, the consequences of his guilty plea, and the purpose of the Rule 11 proceeding. (Id. at 3-4, 11-12.)

The magistrate judge instructed the Assistant United States Attorney ("AUSA") to outline the principle provisions of the plea agreement. In response, the AUSA reviewed several sections of the plea agreement, including the section summarizing the potential penalties that Aparicio-Marquez faced upon conviction. (Plea Hr'g Tr. at 8.)[2] The AUSA also noted that the defendant acknowledged that the court would not be bound by any recommendations or stipulations in the plea agreement and may sentence him up to the statutory maximum. (Id. at 9.) Additionally, the AUSA pointed out that the defendant "waive[d] his right to appeal." (Id. at 10.) By signing the plea agreement, the defendant affirmed that he had "discussed the terms of this plea agreement and all matters pertaining to the charges against him with his attorney and that he [was] fully satisfied with his attorney and his attorney's advice." (Id.) Upon being asked if the AUSA's summary of the plea agreement was consistent with his own understanding of the agreement, Aparicio-Marquez responded in the affirmative. (Id. at 11.)

The magistrate judge then inquired as to whether Aparicio-Marquez was voluntarily pleading guilty. In response to questions from the court, the defendant confirmed that no one had made any promises or assurances to him other than those set forth in the plea agreement, and that no one had tried to force him in any way to plead guilty or sign the agreement. (Id. at 12.) The magistrate judge discussed the plea agreement's waiver of appellate rights, specifically pointing out that pursuant to the plea agreement, the defendant was "giving up or waiving [his] rights to appeal [his] conviction or [his] sentence" and his "right to challenge [his] conviction or sentence in a later court proceeding." (Id. at 17.) When asked if he understood that he had agreed to waive most of his appellate remedies, Aparicio-Marquez responded in the affirmative. (Id.)

The magistrate judge reviewed the many constitutional and civil rights that Aparicio-Marquez would waive if he entered a plea of guilty. (Id. at 14, 17.) The judge reminded the defendant that each of the four offenses to which he was pleading guilty carried a sentence of up to twenty years imprisonment. (Id. at 13). He also notified the defendant that he would be subject to deportation as a result of pleading guilty. (Id.) The judge inquired as to whether the defendant had any questions regarding the charges against him, the possible sentencing range, or the likelihood of deportation. (Id. at 14.) The defendant had no questions. (Id.) When asked whether he did, in fact, distribute cocaine as charged, the defendant responded in the affirmative. (Id. at 18-19.)

The court then called upon the government to present a statement of facts that would support Aparicio-Marquez's plea of guilty. (Id. at 19.) Proceeding by proffer, the AUSA summarized the government's evidence as follows:

From April of 2009 through July 29, 2010, the defendant, Adan Aparicio-Marquez, distributed cocaine to a confidential informant more than one hundred times. During each transaction, Aparicio-Marquez distributed to the confidential informant between one gram and 3.5 grams of cocaine. Aparicio-Marquez also instructed other individuals to assist him in distributing cocaine to the CI on his behalf during this same time period.
Now, the same CI performed four controlled cocaine purchases from the defendant, Aparicio-Marquez. First, on June 10, 2010, Aparicio-Marquez distributed approximately 3.5 grams of cocaine to the CI in Winchester, Virginia. Second, on June 20, 2010, Aparicio-Marquez distributed approximately 3.5 grams of cocaine to the CI in Winchester, Virginia. Third, on June 25, 2010, Aparicio-Marquez distributed approximately 3.5 grams of cocaine to the CI in Winchester, Virginia. Fourth, on July 29, 2010, Aparicio-Marquez distribute[d] approximately seven grams of cocaine to the CI in Winchester, Virginia....
Finally, your honor, on August 24, 2010, law enforcement officers arrested Aparicio-Marquez and [his co-defendant] in Winchester, Virginia. At the time of the arrest, [his co-defendant] was driving Aparicio-Marquez to deliver approximately nine ounces of cocaine.... Officers seized the nine ounces of cocaine from the vehicle....

(Id. at 21-22.) The defendant agreed that this is the evidence the government would have presented against him at trial. (Id. at 23.)

At the conclusion of the hearing, the magistrate judge asked whether Aparicio-Marquez was satisfied with his attorney's representation, and whether he had anything to say about counsel's services. (Id. at 26.) The defendant indicated that he was satisfied with the services provided by his attorney, and said, "Thank you very much. He's always been by my side supporting me, advising me." (Id.) The magistrate judge asked Aparicio-Marquez whether he had any questions for the court. (Id. at 27.) The defendant affirmed that he did not. (Id.) In a report filed on June 17, 2011, Judge Welsh recommended that the court accept the defendant's pleas of guilty to all four felony offenses. (Guilty Plea Report & Recommendation at 13.)

On July 6, 2011, this court adopted the magistrate judge's report and recommendation in whole, and Aparicio-Marquez was adjudged guilty of all four offenses. The court deferred acceptance of the plea agreement, pending completion of a presentence report. Prior to the sentencing hearing, a probation officer prepared a presentence investigation report. The probation officer determined that Aparicio-Marquez should be held accountable for at least 2 but less than 3.5 kilograms of cocaine and, thus, subject to a base offense level of 28. Additionally, the probation officer determined that Aparicio-Marquez was subject to a two-level enhancement for managing and leading criminal activity and a two-level decrease for accepting responsibility, resulting in a total offense level of 28. When combined with a criminal history category of I, Aparicio-Marquez's total offense level gave rise to a range of imprisonment of 78 to 97 months under the advisory United States Sentencing Guidelines ("U.S.S.G.").

The defendant raised two objections to the presentence investigation report, to which the probation officer responded prior to submitting the report to the court. In his first objection, the defendant denied that drugs seized from a vehicle on August 24, 2010 were his or that he intended to distribute them. Further, the defendant objected to the quantity of drugs for which he should be held accountable on the basis that he was misidentified as "Flaco, " the individual who a defendant in a related case named as his sole supplier. In response, the probation officer amended the report to reflect that while the defendant did not deny knowledge of the drugs being in the vehicle, he never claimed them, nor admitted that that he intended to distribute them. However, upon reviewing the evidence, the probation officer concluded that the defendant was "Flaco, " and made no additional amendments to the report based on the defendant's first objection. In his second objection, Aparicio-Marquez argued against the inclusion of a criminal history point for an offense that occurred prior to his eighteenth birthday. The probation officer agreed with the defendant and removed the point, resulting in the criminal history category of I listed in the final presentence report.

The court conducted Aparicio-Marquez's sentencing hearing on October 21, 2011. At the start of the hearing, the defendant confirmed that he had received adequate opportunity to consider the presentence investigation report and the objections filed by counsel on his behalf. (Sentencing Hr'g Tr. at 3-4.) His counsel, William Eldridge, renewed his first objection to the presentence report with regard to the defendant being identified as "Flaco, " and the drug weight for which the defendant should ultimately be held accountable. Upon receipt and full consideration of the evidence, including live testimony from two federal agents, the court overruled the defendant's objection. Specifically, the court found, by a preponderance of the evidence, that Aparicio-Marquez was the "Flaco" referred to during ...

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