United States v. Almodovar , 42 F. App'x 540 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-16-2002
USA v. Almodovar
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-1378
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"USA v. Almodovar" (2002). 2002 Decisions. Paper 401.
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1378 and 01-1501
UNITED STATES OF AMERICA
vs.
JUAN ALMODOVAR
Appellant No. 01-1378
___________
UNITED STATES OF AMERICA
Appellant No. 01-1501
vs.
JUAN ALMODOVAR
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 93-cr-00001-1)
District Judge: The Honorable Mary A. McLaughlin
___________
Submitted Under Third Circuit LAR 34.1(a)
March 22, 2002
BEFORE: NYGAARD, ROTH, and AMBRO, Circuit Judges.
(Filed: July 16, 2002)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Juan Almodovar, pleaded guilty to possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the use of a firearm during
a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He was sentenced to
210 months imprisonment, five years supervised release, and a special assessment of
$100.00. We affirmed his sentence in United States v. Almodovar, 100 F.3d 948 (3d Cir.
1996).
Almodovar then filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. He asserted three claims: first, that an impermissible
sentencing disparity exists between himself and co-defendants sentenced by another
judge; second, that there was an error in imposing a two level enhancement for
obstruction of justice; and third, that there was insufficient evidence to establish that the
controlled substance seized was “crack” cocaine as defined by the Federal Sentencing
Guidelines. The District Court later allowed Almodovar to amend his petition to include
a claim that he had been deprived of due process at sentencing by the Government’s
failure to file a motion for a downward departure pursuant to Section 5K1 of the
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Sentencing Guidelines. The new claim, premised on our intervening decision in United
States v. Isaac, 141 F.3d 477 (3d Cir. 1998), asserted that the Government acted in bad
faith by declining to file this downward departure motion. The District Court granted the
motion in part and denied the motion in part. Specifically, the District Court agreed that
the Government’s refusal to file a downward sentencing departure motion based on the
Appellant’s substantial cooperation amounted to bad faith, warranting specific
performance of the plea agreement. However, the District Court disagreed with
Almodovar, holding that the disparity between his sentence and his co-conspirators was
not a proper basis for a downward sentencing departure. The matter was then re-assigned
to the Hon. Mary A. McLaughlin for re-sentencing. Judge McLaughlin ordered the
Government to file a motion for a downward sentencing departure on the Appellant’s
behalf for substantial assistance pursuant to U.S.S.G. § 5K1.1. The Government filed
such a motion and Judge McLaughlin re-sentenced the Appellant.
Almodovar filed a notice of appeal, challenging this new sentence and we
appointed William T. Cannon, Esq. to assist with the appeal. Attorney Cannon filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1968), raising a single issue:
did the government violate its guilty plea agreement with the defendant by filing a
downward departure motion at re-sentencing and then stating at the sentencing hearing
that it opposed any sentence below the defendant’s original sentence? Counsel also
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stated his view that there are no meritorious issues for appeal. Almodovar was informed
of his right to file a pro se supplemental brief but has failed to do so.
The Government filed a cross-appeal, arguing that Almodovar’s amended
petition should have been dismissed as an improper successive petition under the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), that the amended
petition was time barred by the AEDPA, that the amended petition was procedurally
barred in light of the direct appeal and thus the Isaac issue was not properly before the
District Court, and finally that the District Court’s finding of bad faith was not supported
by the record. We start our analysis with the appeal filed by Almodovar.
Because Almodovar entered a guilty plea, he is limited on appeal to
challenging the District Court’s jurisdiction to accept the plea, to claim that the plea itself
is invalid, or to claim that the sentence imposed on him was illegal. See Tollet v.
Henderson, 411 U.S. 258 (1973). That challenge would fail because the record shows
that Almodovar’s guilty plea was knowing and voluntary within the meaning of Boykin v.
Alabama, 395 U.S. 238 (1969), and that the requirements of Fed. R. Crim. P. 11 were
satisfied in this case. Therefore, the guilty plea presents no nonfrivolous issues for
appeal.
Moreover, Almodovar was sentenced with the guideline range based on the
nature of the offenses and his prior criminal record or lack thereof. As such, there is no
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legitimate basis under 18 U.S.C. § 3742 to challenge this sentence. Almodovar’s claim
that his sentence is illegal is without merit and we will affirm.
On cross-appeal the Government first argues that Almodovar’s amended
motion to vacate was an impermissible successive petition under the AEDPA. We
disagree. Almodovar had good cause to amend his motion–our intervening decision in
United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). Fed. R. Civ. P. 15(a) clearly states
that leave to amend a pleading shall be freely given when justice so requires. Because of
the intervening change in law between the two petitions, we affirm Judge Ludwig’s grant
of the Motion to Amend.
Next, the Government contends that Almodovar’s amended motion was
time barred by the AEDPA. 28 U.S.C. § 2255 provides that habeas petitions must be
filed within one year from the Supreme Court’s denial of certiorari. The Supreme Court
denied Almodovar’s petition for certiorari on February 18, 1997, and his amended habeas
petition was not filed until May 28, 1999–more than one year later. However, in Miller v.
New Jersey State Department of Corrections, 145 F.3d 616 (3d Cir. 1998), we held that
the AEDPA limitations periods are subject to equitable tolling. We wrote that equitable
tolling would generally be proper when “the petitioner has in some extraordinary way. .
.been prevented from asserting his or her rights.” Id. at 618 (internal citations omitted).
Almodovar’s initial habeas petition was filed on February 11, 1998, our decision in Isaac
was filed on April 10, 1998. Almodovar was clearly prevented from asserting his Isaac
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claim before that decision was filed, thus equitably tolling the AEDPA limitations period
was appropriate and we will affirm.
Finally, the Government argues that Almodovar’s amended petition was
procedurally barred in light of the direct appeal, or that, in the alternative, the District
Court’s finding of bad faith by the government was not supported by the record. First,
the amended petition was not procedurally barred because of the intervening decision in
Isaac. Second, the District Court made a number of specific factual findings predicated
upon testimony received during evidentiary hearings held before him. We agree that
these conclusions support a finding of bad faith and affirm the District Court’s order to
the Government to file a motion for downward departure on Almodovar’s behalf.
Conclusion
In sum and for the aforementioned reasons, we will affirm the judgment of
the District Court.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
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THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 01-1378 and 01-1501
___________
UNITED STATES OF AMERICA
vs.
JUAN ALMODOVAR
Appellant No. 01-1378
___________
UNITED STATES OF AMERICA
Appellant No. 01-1501
vs.
JUAN ALMODOVAR
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 93-cr-00001-1)
District Judge: The Honorable Mary A. McLaughlin
___________
Submitted Under Third Circuit LAR 34.1(a)
March 22, 2002
BEFORE: NYGAARD, ROTH, and AMBRO, Circuit Judges.
___________
JUDGMENT
___________
This cause came to be considered on the record from the United States
District Court for the Eastern District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on March 22, 2002.
On consideration whereof, it is now here ORDERED AND ADJUDGED by
this Court that the judgment entered on February 9, 2001, be, and the same are hereby
affirmed.
All of the above in accordance with the opinion of this Court.
ATTEST:
_________________________________
Acting Clerk
Dated: 16 July 2002
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