United States v. Natacha Jihad Pizarro-Campos , 506 F. App'x 947 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11147
Non-Argument Calendar
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D.C. Docket No. 6:10-cr-00191-MSS-GJK-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll& Plaintiff-Appellee,
versus
NATACHA JIHAD PIZARRO-CAMPOS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(February 7, 2013)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Natacha Pizarro-Campos appeals her 120-month sentence, the statutory
minimum for her offense, after pleading guilty to 1 count of conspiracy to possess,
with the intent to distribute, 500 grams or more of methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1). Pizarro-Campos raises several issues on
appeal.
First, she argues that the district court erred by denying her motion to strike
the appeal waiver from her plea agreement. Second, she argues that the court
violated her due process rights at sentencing by failing to require the government
to produce transcripts of grand jury proceedings where she testified. Third, she
argues that the court erred by determining that she was ineligible for relief from
the mandatory minimum sentence under 18 U.S.C. § 3553(f). Fourth, she argues
that the court erred by imposing the statutory minimum sentence because
mandatory minimums violate separation of powers, due process, and the
parsimony clause of 18 U.S.C. § 3553(a). Finally, she argues that her sentence
violates her Eighth Amendment rights.
I.
Pizarro-Campos argues that the court erred by denying her motion to strike
the appeal waiver from her plea agreement, because the waiver contravenes
Florida’s public policy and protects government interests over those of the
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defendant. The Florida Bar Ethics Committee (“FBEC”) drafted a proposed
advisory opinion stating that prosecutors may not make plea offers that require
defendants to waive their rights to ineffective assistance of counsel claims,
because it creates conflicts of interest for criminal defense attorneys. The Board
of Governors of the Florida Bar approved this opinion on December 7, 2012. See
Professional Ethics of the Florida Bar, Opinion 12-1 (June 12, 2012) [approved
December 7, 2012].
She also argues that the appeal waiver is unenforceable because she agreed
to it under duress. She asserts that the government’s policy of requiring
defendants to sign an appeal waiver in order to be eligible for a downward
departure under U.S.S.G. § 5K1.1, for substantial assistance to the government, is
unduly coercive. Therefore, she was forced to give up her appellate rights in order
to potentially avoid a mandatory minimum sentence.
We review the validity of a sentence appeal waiver de novo. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Sentence appeal waivers are
enforceable when made knowingly and voluntarily. United States v. Bushert, 997
F.2d 1343, 1350-51 (11th Cir. 1993). To establish that the waiver was made
knowingly and voluntarily, the government must show that either (1) the court
specifically questioned the defendant about the waiver during the plea colloquy, or
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(2) the record makes clear that the defendant otherwise understood the full
significance of the waiver. Id. at 1351. We cannot disregard prior binding
precedents–even for policy reasons–until those cases are abrogated by the
Supreme Court, or overruled by this Court sitting en banc, which has not occurred
with respect to Bushert. United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir.
2010).
First, the court did not err in ruling that Pizarro-Campos’s appeal waiver
was valid despite the FBEC’s advisory ethics opinion. We have acknowledged the
public benefit of plea bargains in criminal cases, Bushert, 997 F.2d at 1347, and
the FBEC’s opinion only addresses the waiver of ineffective assistance and
prosecutorial misconduct claims. Notably, Pizarro-Campos argues that appeal
waivers are invalid because they require defendants to waive ineffective assistance
of counsel claims, a claim that she has not made. Further, her additional argument
that public policy considerations support holding that appeal waivers are
unenforceable is undermined by Bushert.
Second, the court did not err in determining that Pizarro-Campos entered
into her plea agreement knowingly and voluntarily. At the plea hearing, the court
specifically and adequately addressed the sentencing appeal waiver, explaining
each challenge that Pizarro-Campos had not waived. Pizarro-Campos stated that
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she understood she was waiving her right to appeal, and that she was “freely and
voluntarily” entering her plea.
Because there is no indication that Pizarro-Campos did not knowingly and
voluntarily enter the agreement, she has not overcome the strong presumption that
the statements she made at the plea hearing were true. See United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (ruling that there is a strong
presumption that statements made under oath by a defendant during the plea
colloquy are true). Therefore, the appeal waiver provision is valid, and the district
court’s denial of Pizarro-Campos’s motion to strike is affirmed.
II.
Most of the issues raised by Pizarro-Campos on appeal were waived in her
plea agreement. Pizarro-Campos argues that the court violated her due process
rights at sentencing by ruling that the government’s failure to produce transcripts
of grand jury proceedings was not a Brady1 violation. She argues that the court
erred by ruling that she was ineligible for “safety valve” relief from the mandatory
minimum sentence under 18 U.S.C. § 3553(f). She also argues that the court erred
by imposing the statutory minimum sentence because mandatory minimums
violate separation of powers, due process, and the parsimony clause of 18 U.S.C.
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Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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§ 3553(a).
Pizarro-Campos knowingly and voluntarily waived her right to initiate an
appeal of her sentence, except to challenge a sentence imposed above the
guideline range as determined by the court, a sentence imposed above the statutory
maximum of life, or a sentence in violation of the Eighth Amendment. We
enforce a sentence appeal waiver if it was made knowingly and voluntarily.
Bushert, 997 F.2d 1350-51. Because she waived her right to appeal based on the
court’s denial of her request for grand jury transcripts, the court’s denial of “safety
valve” relief, and the legality and constitutionality of the mandatory minimum, we
dismiss these claims.
III.
Pizarro-Campos argues that her sentence violates her Eighth Amendment
rights, because it is grossly disproportionate to her crime, and because the
application of mandatory minimums constitutes cruel and unusual punishment.
We review the legality of a sentence under the Eighth Amendment de novo.
United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006). The Eighth
Amendment prohibits the infliction of cruel and unusual punishments. U.S.
CONST. amend. VIII. In non-capital cases, the defendant must first show that the
sentence is grossly disproportionate to the offense. Johnson, 451 F.3d at 1243. In
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general, a sentence within the statutory limits for an offense is not grossly
disproportionate. Id. The statutory sentence limits for Pizarro-Campos’s offense,
conspiracy to possess, with the intent to distribute, 50 grams or more of
methamphetamine, is 10 years to life. 21 U.S.C. § 841(b)(1)(A)(viii).
Because there are no objective standards for analyzing the difference
between sentences of imprisonment for different terms of years, successful
challenges to the length of sentences are “exceedingly rare.” Harmelin v.
Michigan, 501 U.S. 957, 1001,111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (1991). We
have never ruled that a sentence of imprisonment was grossly disproportionate.
United States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010). Moreover, the
mandatory nature of a sentence in a non-capital case does not affect
proportionality. Id.The Supreme Court has held that one sentence, outside of juvenile cases,
violated the Eighth Amendment, where a life sentence without parole was imposed
on a defendant who committed a string of relatively minor, non-violent offenses.
Solem v. Helm, 463 U.S. 277, 280-81, 103 S.Ct. 3001, 3005, 77 L.Ed.2d 637(1983). The Supreme Court noted that the offense in Solem, uttering a “no
account” check, was “one of the most passive felonies a person could commit,”
and was “viewed by society as among the less serious offenses.” Id. at 296, 103
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S.Ct. at 3012-13 (quotation omitted).
In Harmelin, the Supreme Court ruled that a life sentence without parole
was not grossly disproportionate for a defendant convicted of possessing 672
grams of cocaine. Harmelin, 501 U.S. at 961, 1002-04, 111 S.Ct. at 2683,
2705-06. The Court explained that, unlike the offense in Solem, the possession,
use, and distribution of illegal drugs threatened grave harm to society. Id. at 1002-
03, 111 S.Ct. at 2705-06.
Based on the Supreme Court’s ruling in Harmelin, and the precedent of this
Court, Pizarro-Campos has not shown that her 10-year sentence is grossly
disproportionate to her offense. Unlike the offense in Solem, conspiracy to
possess with the intent to distribute methamphetamine is not a passive felony that
is considered less serious by society. Pizarro-Campos’s offense threatened grave
harm to society, because of the detrimental effect that methamphetamine has on
users, and because of the crimes of violence associated with its distribution and
sale. Where the defendant in Harmelin, whose sentence of life without parole was
upheld, was responsible for the distribution of 672 grams of cocaine,
Pizarro-Campos was responsible for a much larger amount, 1,639.9 grams, of
methamphetamine. Therefore, Pizarro-Campos’s sentence is not grossly
disproportionate to her offense, and does not violate the Eighth Amendment.
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Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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