United States v. Fredrico Pacheco-Romero

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10965
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDRICO PACHECO-ROMERO,
a.k.a. Fredy
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00077-LMM-RGV-1
2 Opinion of the Court 20-10965
____________________
____________________
No. 20-10970
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MARTINEZ,
a.k.a. Carlos,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00077-LMM-RGV-4
____________________
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
20-10965 Opinion of the Court 3
Appellants Fredrico Pacheco-Romero and Carlos Martinez
argue that they should be permitted to withdraw the guilty pleas
they entered in their criminal cases. After careful consideration, we
remand the case for further proceedings.
I.
Pacheco and Martinez were charged, along with four other
co-defendants, with one count of conspiring to possess with intent
to distribute at least 500 grams or more of a mixture and substance
containing methamphetamine.1 Initially, all six defendants re-
tained the same attorneys—Jerome Lee and Stephen Brown-Ben-
nett of the law firm Taylor, Lee & Associates (“TLA”). Unsurpris-
ingly, the district court found that there was a conflict of interest in
the lawyers’ joint representation of the co-defendants and disqual-
ified Jerome Lee and Bennett, along with TLA, from representing
any of the defendants.
After the district court disqualified TLA, Jerome Lee, and
Bennett, TLA found new attorneys for Pacheco, Martinez, and at
least some of the other co-defendants. Attorney Paula Lee repre-
sented Pacheco,2 and attorney Angela Brown represented Mar-
tinez. Paula Lee and Brown collected retainers to represent
1 Because we write only for the parties, who are already familiar with the facts
and proceedings in the case, we include only what is necessary to explain our
decision.
2 Paula Lee and Jerome Lee are not related. Paula Lee is a former employee
of TLA. Her employment ended several months before the defendants were
charged in this case.
4 Opinion of the Court 20-10965
Pacheco and Martinez, respectively. Some evidence in the record
suggests that TLA paid these retainers in cash.
While represented by Paula Lee and Brown, Pacheco and
Martinez pled guilty. At the sentencing hearings that followed, the
district court calculated Pacheco’s guidelines range as life impris-
onment and Martinez’s guidelines range as 360 months’ to life im-
prisonment. Ultimately, the district court imposed sentences of 262
months and 240 months, respectively. After they were sentenced,
Pacheco and Martinez both filed notices of appeal and were ap-
pointed new counsel.
The attorneys appointed for the appeals uncovered infor-
mation that they believed showed that Paula Lee and Brown were
operating under conflicts of interest while representing Pacheco
and Martinez. While the direct appeals were pending, Pacheco and
Martinez filed motions in the district court seeking indicative rul-
ings3 about whether the district court would allow them to with-
draw their guilty pleas on the ground that the pleas were not know-
ing and voluntary.
3 Once a notice of appeal is filed in a case, the district court is “divest[ed] of its
control over those aspects of the case involved in the appeal.” Griggs v. Provi-
dent Consumer Discount Co., 459 U.S. 56, 58 (1982). But even when an appeal is
pending, a district court may issue an indicative ruling reflecting how it would
rule on an issue if it had jurisdiction. The appellate court then may remand the
case to allow the district court to issue a ruling. See Fed. R. App. P. 12.1; Fed.
R. Crim. P. 37.
20-10965 Opinion of the Court 5
We previously ordered a limited remand to allow the district
court to decide whether to allow Pacheco and Martinez to with-
draw their pleas. On remand, the district court held a two-day evi-
dentiary hearing. But because the district court interpreted our re-
mand order as authorizing it to do nothing more than hold an evi-
dentiary hearing, the court made no factual findings and did not
decide whether to exercise its discretion to permit Pacheco and
Martinez to withdraw their pleas.
After the evidentiary hearing, the parties submitted briefing
to this Court. Pacheco and Martinez urge us to allow them to with-
draw their pleas because Paula Lee and Brown had conflicts of in-
terest and those conflicts adversely affected the attorneys’ repre-
sentation. Alternatively, Pacheco and Martinez ask us to remand to
the district court for it to make findings of fact and decide the plea-
withdrawal issue in the first instance. In contrast, the government
says we should conclude that Pacheco and Martinez cannot with-
draw their pleas because they failed to show that their attorneys
had a conflict of interest or that any conflict adversely affected the
attorneys’ representation.
II.
The question of whether to allow a defendant to withdraw
his guilty plea belongs to the discretion of the district court. See
United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). It is thus
for the district court to decide in the first instance whether Pacheco
and Martinez should be allowed to withdraw their pleas. Because
the district court has not yet ruled on the motions to withdraw the
6 Opinion of the Court 20-10965
pleas, we conclude that remand is necessary. This approach is con-
sistent with our general practice that when a district court has yet
to decide an issue that we review for abuse of discretion, we re-
mand so that the district court “in the first instance” may decide
whether to exercise its discretion. Smith v. Casey, 741 F.3d 1236,
1243 n.7 (11th Cir. 2014).
Remand is also appropriate because the district court will
need to make factual findings to decide whether to permit Pacheco
and Martinez to withdraw their pleas on the basis that the pleas
were unknowing and involuntary. The parties agree that for the
pleas to be considered unknowing and involuntary, Pacheco and
Martinez must show that their counsel had an actual conflict of in-
terest and that the conflict adversely affected counsels’ perfor-
mance. See Pegg v. United States, 253 F.3d 1274, 1277 (11th Cir. 2001).
As the parties’ briefs illustrate, the questions of whether Paula Lee
and Brown had conflicts of interest and what impact any conflicts
had on their performance require a factfinder to resolve disputed
questions of fact. Remand is necessary to allow the district court to
make these factual findings. See Pullman-Standard v. Swint, 456 U.S.
273, 291–92 (1982) (explaining that “[f]actfinding is the basic re-
sponsibility of district courts, rather than appellate courts” and that
appellate courts “should not . . . in the first instance” resolve a fac-
tual dispute (internal quotation marks omitted)); Norelus v. Denny’s
Inc., 628 F.3d 1270, 1289 (11th Cir. 2010) (stating the “factfinding
function . . . belongs . . . in the district court, not in this Court”). It
will also afford the district court judge, who observed the witnesses
at the evidentiary hearing, the opportunity to make credibility
20-10965 Opinion of the Court 7
determinations. See United States v. Copeland, 20 F.3d 412, 413 (11th
Cir. 1994) (explaining that credibility determinations are “the prov-
ince of the factfinder”).
The government asserts that remand is unnecessary because
there is no evidence in the record to support Pacheco’s and Mar-
tinez’s positions that Paula Lee and Brown had actual conflicts of
interest and that these conflicts adversely affected the representa-
tion. 4 It is true that we have not required remand to the district
court for factual findings on issues related to conflicts of interest
when “the record was clear as to the factual circumstances.” Reyn-
olds v. Chapman, 253 F.3d 1337, 1347 (11th Cir. 2001); see also Smith
v. White, 815 F.2d 1401, 1407 (11th Cir. 1987) (concluding remand
was not required when the habeas petitioner “completely failed to
present any evidence at the evidentiary hearing” showing that his
attorney had an actual conflict of interest). After careful considera-
tion, we cannot agree with the government that there is no evi-
dence to support Pacheco’s and Martinez’s positions such that we
may decide in the first instance whether Pacheco and Martinez’s
4 The government also suggests that Pacheco and Martinez failed to raise any
argument in the district court challenging the district court’s interpretation of
the remand order as requiring this Court, as opposed to the district court, to
decide whether to permit Pacheco and Martinez to withdraw their pleas. We
disagree. In their motions for indicative ruling, Pacheco and Martinez asked
the district court to decide these issues. And after the evidentiary hearing,
Pacheco and Martinez again requested that the district court resolve these is-
sues in the first instance.
8 Opinion of the Court 20-10965
pleas were knowing and voluntary. We thus conclude that remand
is necessary.
Accordingly, we REMAND for the district court to rule on
whether Pacheco and Martinez may withdraw their guilty pleas. In
deciding whether to permit withdrawal of the pleas, the district
court may make any necessary factual findings and credibility de-
terminations.
REMANDED.