United States v. Arellano ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51080
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE MARIA ARELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(SA-97-CR-264-ALL-EP)
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November 28, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Pursuant to a plea agreement, Defendant-Appellant Felipe Maria
Arellano pleaded guilty to one count of money laundering, a
violation of 18 U.S.C. § 1956(a)(3)(B). Arellano stipulated in his
plea agreement that he met with undercover agents and agreed to
launder over $250,000 by passing it through his liquor-business
accounts. Arellano waived the right to appeal his sentence “on any
ground” except an upward departure from the guidelines. He
asserted that he understood and agreed to every provision of the
plea agreement. At his rearraignment, Arellano adopted the plea
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
agreement under oath and affirmed that his plea was “totally
voluntary, yes, sir”. He stated that he was not coerced to plead
guilty and that he was in fact guilty of the crime in accordance
with the facts recited in the plea agreement.
At his sentencing hearing five months after the plea, Arellano
orally moved to withdraw his plea. In a subsequent written motion,
Arellano alleged that his plea was involuntary because it was based
on misrepresentations of prior counsel. The district court
conducted a hearing after which it denied Arellano’s motion,
concluding that Arellano’s legal representation was effective and
his plea knowing and voluntary. The court sentenced Arellano to 57
months’ imprisonment, based on an offense level that was increased
because of the amount of money involved and Arellano’s knowledge
that the money was derived from drug-trafficking. See U.S.S.G. §§
2S1.1(b)(1) and 2S1.1(b)(2)(C) (1997).
Arellano now appears pro se. When his pleadings are construed
liberally in accordance with Haines v. Kerner, 404 U.S. 519, 520
(1972), Arellano raises two claims. First, he contends that his
guilty plea was involuntary. He does this in the context of
arguing that the district court abused its discretion in denying
his motion to withdraw his guilty plea. Underlying this issue is
his claim that his first attorney rendered ineffective assistance
by misleading him about the maximum sentence to which he was
exposed and the potential prosecution of his wife and his brother
if he did not plead guilty. Second, he contends that his sentence
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was improperly increased on the basis of the amount of money
laundered and his knowledge of the source of the money.
Arellano also argues insufficient-evidence and entrapment, but
these issues are irrelevant if Arellano’s guilty plea was valid.
A knowing and voluntary guilty plea waives nonjurisdictional
defects such as a claim of insufficient evidence. See United
States v. Taylor, 814 F.2d 172, 174 ( 5th Cir. 1987).
As Arellano contends that his plea was the result of
ineffective assistance of counsel, appeal of his guilty plea is not
waived by the plea agreement. See United States v. Henderson, 72
F.3d 463, 465 (5th Cir. 1995). In addition, we may address
Arellano’s ineffective-assistance claim on direct appeal because
the plea-withdrawal hearing dealt with this issue and therefore
provides a sufficient record for evaluation. United States v.
Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
To show ineffective assistance of counsel, Arellano must prove
that his counsel’s performance was deficient and that, but for the
deficiency, “he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985); Strickland v. Washington, 466 U.S. 668, 687 (1984). A
court need not address both components of an ineffective-assistance
claim if the movant fails to prevail on either one. Strickland,
466 U.S. at 697. We review the ultimate determination of
ineffective assistance de novo, but the district court’s
credibility determinations and subsidiary factual findings in the
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hearing on the issue are reviewed for “clear error”. Bryant v.
Scott, 28 F.3d 1411, 1414 n.3 (5th Cir. 1994).
Arellano argues that counsel misled him into believing that he
risked 30 years’ imprisonment if he were convicted. The actual
statutory maximum penalty was 20 years. See 18 U.S.C.
§ 1956(a)(3)(B). Arellano fails to assert that he would have
chosen to go to trial if he had known the maximum sentence was 20
years rather than 30. In addition, Arellano makes only a
conclusional statement that counsel told him that his brother and
his wife risked being indicted if he did not plead guilty.
Arellano has failed to allege that counsel’s statements were false,
and he offers no legal argument or authority relevant to this
issue; thus it is waived. See American States Ins. Co. v. Bailey,
133 F.3d 363, 372 (5th Cir. 1998) (issue not argued is waived).
Arellano fails to show that counsel’s representation caused him to
forego a trial, so he cannot satisfy the prejudice prong of Hill.
Arellano has not established ineffective assistance of counsel.
Arellano shows no other “fair and just reason” for allowing
withdrawal of his plea. Fed. R. Crim. P. 32(d); United States v.
Thomas, 13 F.3d 151, 153 (5th Cir. 1994). Arellano had the burden
of justifying withdrawal, and the district court’s refusal to allow
withdrawal is reviewed for abuse of discretion. Id. at 153. The
record shows that Arellano’s plea was voluntary and that he was
adequately represented by counsel. He delayed five months before
moving to withdraw the plea and offered no valid justification for
the delay. Rather, he has admitted that he obtained new counsel
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for the express purpose of bargaining for a shorter sentence,
planning to withdraw his plea if such bargaining were to prove
unsuccessful. Allowing withdrawal of the plea would have
prejudiced the government, burdened the court, and wasted judicial
resources. See id. at 153; see also United States v. Carr 740 F.2d
339, 344-46 (5th Cir. 1984).
Arellano argues that his offense level was improperly
increased because he did not know he was laundering proceeds from
drug-trafficking and because he did not launder more than $250,000.
Because his guilty plea and plea agreement were voluntary and
valid, however, he has waived the right to appeal his sentence.
See Taylor, 814 F.2d at 174.
Arellano’s conviction and sentence are
AFFIRMED.
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