United States v. Delgado ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20574
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
FRANCISCO GILBERTO DELGADO, also known as Frank Delgado,
also known as El Maestro
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-58-2
March 24, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Delgado appeals the conviction and sentence that followed his
guilty plea to possession of marijuana with intent to distribute
and conspiracy.
Delgado argues the district court based his sentencing level
in part on unreliable information contained in his presentence
report, which led the court to hold him responsible for 24,856
pounds of marijuana.
*
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opinion should not be published and is not precedent except under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.
We review for clear error the district court’s factual
findings as to the quantity of drugs for which the defendant may be
held responsible. See United States v. Narvis-Guerra, 148 F.3d
530, 537 (5th Cir. 1998). A court may rely on information contained
in a presentence report even though it is not admissible evidence,
but it must have “sufficient indicia of reliability to support its
probable accuracy.” Federal Sentencing Guidelines Manual, §
6A1.3(a) (1998). Although a presentence report generally bears
sufficient indicia of reliability, a sentencing court may not rely
on non-specific, unsubstantiated and uncorroborated information in
a presentence report. See United States v. Narvis-Guerra, 148 F.3d
at 537. Although Delgado asserts the information on which the
court relied was unreliable, it was highly detailed and well-
corroborated by the evidence seized by the government and the
statements given by co-conspirators. The information to which
Delgado objects points to his involvement in the conspiracy to an
extent that the court could hold him responsible for the specified
amount of marijuana. The district court carefully considered the
reliability of the information in the presentence report, and the
information was sufficiently reliable.
Delgado argues that the district court erroneously used an FBI
form 320 report contained in the presentence report to determine
that Delgado played a managerial role in the conspiracy. The
district court increased Delgado’s sentencing level by 3 levels
pursuant to U.S.S.G. § 3B1.1(b) because it determined that Delgado
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played a managerial role in a criminal activity that involved 5 or
more participants. We review the district court’s factual findings
for clear error. See United States v. Reveles, 190 F.3d 678, 685
(5th Cir. 1999). The well-corroborated and detailed facts show that
Delgado played a role in organizing the transportation of marijuana
for the enterprise. The district court’s conclusion that he played
a managerial role in the offense was amply supported.
Delgado asserts that he was deprived of effective assistance
of counsel. He argues that his attorney had a conflict of interest
because Delgado claimed in his pro se objections to the presentence
report, submitted after his guilty plea, that the attorney rendered
ineffective assistance of counsel and that, as a result of this
conflict, Delgado did not have effective assistance of counsel at
his sentencing hearing. Delgado also argues that the failure to
file objections to the presentence report and his guilty plea
itself were due to ineffective assistance of counsel. The district
court specifically found during the sentencing hearing that Delgado
received effective assistance of counsel. However, Delgado’s
ineffective assistance claim is not ripe for appellate review. The
record is not sufficiently developed to review the claim. We do
not review such claims when the record is insufficiently developed.
See, e.g., United States v. Sidhu, 130 F.3d 644, 650 (5th Cir.
1997). This claim should be considered in the appropriate
proceeding under 28 U.S.C. § 2255.
Delgado argues that the district court improperly participated
in plea negotiations. The district court told Delgado and others
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that they would not receive a reduction for acceptance of
responsibility if they waited until just before trial to plead
guilty. Trial was set for November 12, 1997, and the district
court stated that guilty pleas made after 2:00 p.m. on November 10,
1997 would not support a reduction for acceptance of
responsibility, noting that it would be inappropriate to do so when
the government would have to prepare fully for trial. The court
thereby informed Delgado of the law under U.S.S.G. § 3E1.1(b)(2),
which requires “timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to allocate its
resources efficiently.” By doing so, the court did not participate
in any plea negotiations.
Delgado argues that the district court abused its discretion
in refusing to grant his motion to withdraw his guilty plea. We
review the district court’s denial of a timely motion to withdraw
a guilty plea for abuse of discretion. See United States v.
Benavides, 793 F.2d 612, 616 (5th Cir. 1986). Delgado argues that
the district court abused its discretion in denying his motion to
withdraw his guilty plea because his counsel was ineffective. He
claims that his counsel was ineffective because he asserted
ineffective assistance of counsel in his pro se objections to the
presentence report, and his attorney was rendered ineffective due
to the resulting conflict of interest. At his sentencing hearing,
Delgado claimed that he decided to plead guilty without having been
well informed of the “facts” by his attorney. On appeal, he argues
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further that he was effectively without counsel at his sentencing
hearing because of the alleged conflict.
The record does not support Delgado’s assertion that he
pleaded guilty because he was ill-informed, or that he was not
informed of the “facts” surrounding his case. Delgado’s suggestion
that his guilty plea was not informed or voluntary is utterly
without support in the record. “The defendant has the burden of
establishing a reason for the withdrawal of the plea that is ‘fair
and just.’” United States v. Carr, 740 F.2d 339, 344 (5th Cir.
1984). Delgado can provide no fair or just reason why his guilty
plea should be withdrawn. The district court properly exercised
its discretion in denying Delgado’s motion to withdraw his plea.
AFFIRMED; MOTION for leave to file reply brief MOOT.
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