Gallo-Vasquez, Carlo v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3385
CARLOS GALLO-VASQUEZ,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 5051—Ruben Castillo, Judge.
____________
ARGUED JANUARY 20, 2005—DECIDED APRIL 1, 2005
____________
Before FLAUM, Chief Judge, and BAUER and KANNE,
Circuit Judges.
FLAUM, Chief Judge. Carlos Gallo-Vasquez moved to va-
cate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, alleging that his counsel at trial and on direct ap-
peal provided him with ineffective assistance. The district
court dismissed the motion without holding a hearing or
requiring the government to respond. Gallo-Vasquez appeals.
Because the record conclusively shows that petitioner is not
entitled to relief, we affirm.
2 No. 03-3385
I. Background
In August 2000, United States customs officials inter-
cepted a truck crossing the U.S.-Mexican border carrying
5,000 pounds of marijuana hidden inside sacks of charcoal.
After determining that the truck was destined for Chicago,
the customs officials handed the vehicle over to the Chicago
police. On August 9, 2000, an undercover Chicago police
officer drove the truck to the suspected delivery address.
The officer found no one at that location to receive the
delivery and, posing as an ordinary driver, called around to
figure out where to take the truck. The undercover officer
was instructed to drive the truck to a warehouse on Chi-
cago’s south side. He arrived and parked the truck at a
loading dock towards the rear of the warehouse. Six or
seven men began unloading the sacks from the truck, while
another man, later identified as Gallo-Vasquez, monitored
their work. Once the unloading was complete, the under-
cover officer asked one of the men to sign the bill of lading.
He directed the officer to Gallo-Vasquez, who signed the form
using a false name. After the undercover officer left, law
enforcement agents raided the warehouse and arrested
Gallo-Vasquez and seven others.
Petitioner was indicted for possession with intent to dis-
tribute more than 1,000 kilograms of marijuana in violation
of 21 U.S.C. § 841(a)(1). Trial was scheduled to begin on
March 5, 2001. On February 24, 2001, Gallo-Vasquez, who
is a Mexican citizen, sent a letter written in his native
language of Spanish to the presiding judge asking that his
attorney be removed. The certified English translation of
the letter alleges an ongoing disagreement between Gallo-
Vasquez and his counsel. The letter describes in detail a
series of steps that Gallo-Vasquez purportedly asked his
attorney to take in preparation for the trial. For example,
petitioner asserted in the letter that he had requested that
his counsel subpoena five specified potential witnesses,
believing that they might have evidence that would prove
No. 03-3385 3
his innocence. The correspondence to the court relates that
petitioner described to his counsel why the witnesses’ testi-
mony would be crucial to his defense. According to the
letter, however, counsel refused to subpoena the individuals
and explained to petitioner that the information would be
irrelevant to the issues likely to be contested if the case
went to trial. Gallo-Vasquez complained in the letter that
counsel was not doing anything to prove his innocence,
alleging that his attorney instead “has always told me to
plead guilty to accept a deal, that that [sic] is the best,
because otherwise, I am going to get 10 years in jail.” The
letter expresses repeatedly petitioner’s alarm at and dis-
agreement with counsel’s advice: “I consider myself a de-
fenseless person . . . . he has failed to do all the things I have
requested of him . . . . I consider myself under the pressure
of my attorney to plead guilty . . . . A TRIAL CANNOT BE
WON WITHOUT ANY BASIS to prove my innocence.” It
concludes, “[f]or all these reasons . . . I am addressing you,
Honorable Judge Castillo, to request that my attorney be
removed, and if it is necessary for me to plead guilty in
order to prove my innocence and so that you can hear me
out, I will do so.”
On February 27, 2001, Gallo-Vasquez moved pro se to
dismiss his counsel. The motion requested that the district
court “ALLOW [Gallo-Vasquez] A[N] ATTORNEY WHO
WILL PROTECT HIS 6th AMENDMENT RIGHT” and
“ENABLE [him] SOME FAIR PLAY AT TRIAL.” Neither
the letter nor the motion mention any communication prob-
lems between Gallo-Vasquez and his counsel.
On February 28, 2001, the district court held a status
hearing during which the parties addressed the letter and
the motion. Defense counsel denied the accusations in the
letter, stated that he was ready to go to trial, but moved to
withdraw at Gallo-Vasquez’s request. Petitioner advised the
district court through an interpreter that he believed that
his counsel was not adequately prepared. The court denied
4 No. 03-3385
the motion to withdraw, finding that “Mr. Gallo-Vasquez is
manipulating the criminal justice system by sending this
letter to me at the last minute . . . . [T]his is a deliberate
attempt on the part of a defendant who is concerned about
proceeding to trial for a lot of different reasons.”
The case went to trial as scheduled. The government
presented evidence that Gallo-Vasquez managed the drug
shipment, including testimony from one of the men arrested
at the warehouse that petitioner had directed their unload-
ing of the truck. With the aid of an interpreter, Gallo-
Vasquez testified on his own behalf, asserting that he had
flown from Mexico to Chicago intending to visit a friend,
that an unknown man approached him just outside O’Hare
airport and offered him a job moving sacks of charcoal,
and that he accepted the job without knowing that the sacks
contained drugs. During his testimony, Gallo-Vasquez
admitted that he spoke some English and described an
exchange where he asked someone, in English, for direc-
tions. At a few points, petitioner restated his answers in
English when the interpreter had difficulty translating his
responses. The jury found him guilty.
Petitioner moved for a new trial. Counsel advised that
Gallo-Vasquez spoke enough English that an interpreter
would not be necessary for the hearing on the motion. The
hearing proceeded without an interpreter and without ob-
jection from Gallo-Vasquez. The motion for a new trial was
denied.
Prior to sentencing, the United States Probation Office
prepared a presentence report recommending, among other
things, that Gallo-Vasquez receive a three-level upward
adjustment for his supervisory role in the offense. See
United States Sentencing Guideline (“U.S.S.G”) § 3B1.1(b).
Gallo-Vasquez filed an objection to the recommendation and
moved the court to depart downward because of his status
as a deportable alien. The government filed a memorandum
No. 03-3385 5
in support of the upward adjustment, but in opposition to
the downward departure. At the sentencing hearing, the
court heard additional argument on these points, found the
upward adjustment warranted, and, over the prosecution’s
objection, granted a four-level downward departure based
on petitioner’s status as a deportable alien. The court
sentenced Gallo-Vasquez to 135 months of imprisonment
and entered its final judgment on June 26, 2001.
On June 28, 2001, Gallo-Vasquez’s trial counsel filed a
notice of appeal. On July 23, 2001, the government cross-
appealed. Petitioner’s trial counsel withdrew and was
replaced by an assistant federal public defender. On direct
appeal, defendant’s new counsel argued that the district
court had erred by imposing the supervisory-role enhance-
ment. The crux of the argument was that there had been
insufficient evidence that five or more other people were
involved in the offense. See U.S.S.G. § 3B1.1(b) (applicable
only where defendant managed or supervised five or more
participants in the crime). We affirmed the enhancement,
concluding that there was ample evidence justifying the
district court’s finding on this point. United States v.
Gallo-Vasquez, 284 F.3d 780, 783-84 (7th Cir. 2002).
The government contended in its cross-appeal that the
district court abused its discretion in granting the down-
ward departure based on petitioner’s status as a deportable
alien. We noted that “a ‘defendant’s status as a deportable
alien is relevant only insofar as it may lead to conditions of
confinement, or other incidents of punishment, that are
substantially more onerous than the framers of the guide-
lines contemplated in fixing the punishment range for the
defendant’s offense.’ ” Id. at 784 (quoting United States v.
Guzman, 236 F.3d 830, 834 (7th Cir. 2001)). Because the
district court had not articulated specifically why Gallo-
Vasquez’s status met this test, we reversed and remanded
with instructions that it reconsider the issue and make
additional findings if it again decided to depart. Id. at 785.
6 No. 03-3385
On remand, the district court found that the downward
departure was not justified and resentenced Gallo-Vasquez
to 210 months of imprisonment.
On July 14, 2003, Gallo-Vasquez filed the instant motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The motion contends that trial counsel provided him
with ineffective assistance by: (i) convincing Gallo-Vasquez
unwisely to reject a plea agreement allegedly offered by the
government; and (ii) failing to bring an interpreter to any
of their out-of-court meetings, despite Gallo-Vasquez’s
purported inability to speak more than a few words of
English. The motion also asserts that petitioner’s counsel
(both trial and appellate) rendered ineffective assistance by
filing a meritless appeal that opened the door to a sentence
enhancement on remand. The motion did not attach any
affidavits or other documentary support aside from a
photocopy of one page of the district court’s docket sheet
displaying the name of Gallo-Vasquez’s trial counsel. The
district court dismissed the motion without holding a hearing
or requiring the government to respond. Petitioner appeals,
contending that the district court erred by summarily
dismissing his claims.
II. Discussion
A district court may dismiss a § 2255 motion without
holding a hearing or requiring the government to respond
if “the motion and the files and records of the case con-
clusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255 ¶2. “If it plainly appears from the face of
the motion and any annexed exhibits and the prior proceed-
ings in the case that the movant is not entitled to relief
in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.”
Rule 4(b) of the Rules Governing Section 2255 Proceedings
(2003). “[A] hearing is not necessary if the petitioner makes
No. 03-3385 7
conclusory or speculative allegations rather than specific
factual allegations.” Daniels v. United States, 54 F.3d 290,
293 (7th Cir. 1995). “[T]he district court is entitled to con-
sider all the circumstances in the record in determining
whether a hearing should be afforded.” Aleman v. United
States, 878 F.2d 1009, 1012 (7th Cir. 1989) (quoting Day v.
United States, 357 F.2d 907, 910 (7th Cir. 1966)).
A. Plea Negotiations
Gallo-Vasquez asserts that the government offered him a
plea bargain that contemplated a 48-month sentence, and
that his trial counsel provided him with ineffective assis-
tance by advising him to reject the offer. He contends that
counsel persuaded him to go to trial, despite the near
certainty that he would be convicted. Had he been compe-
tently advised, Gallo-Vasquez alleges, he would have ac-
cepted the government’s offer.
To prevail on a claim of ineffective assistance of counsel,
petitioner must satisfy the two-part test first articulated in
Strickland v. Washington, 466 U.S. 668 (1984). First,
petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688.
“[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable profes-
sional assistance.” Id. at 689. Second, petitioner “must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id.We have recognized that counsel’s performance may fall
below the minimum threshold if he advises his client to
reject a plea bargain in the face of overwhelming evidence
of guilt and an absence of viable defenses. See Toro v.
8 No. 03-3385
Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991). The record
shows, however, that petitioner was not advised to reject a
plea agreement. First, Gallo-Vasquez’s letter repeatedly
complains about counsel’s consistent advice that he should
accept a plea agreement if one were offered. According to
the letter, counsel explained that Gallo-Vasquez was certain
to be convicted and sentenced to a significant term of
imprisonment if he went to trial. The district court was
correct to look beyond the face of the motion and consider
this evidence. Aleman, 878 F.2d at 1012. Second, aside from
the allegation contained in Gallo-Vasquez’s motion, there is
no evidence that the government offered petitioner a deal.
The motion does not attach a copy of the proposed agree-
ment, state when or by whom the offer was made, or give
any details other than to assert that it contemplated a 48-
month sentence. See Prewitt v. United States, 83 F.3d 812,
819 (7th Cir. 1996) (“in order for a hearing to be granted,
the [motion] must be accompanied by a detailed and specific
affidavit”) (quoting Barry v. United States, 528 F.2d 1094,
1101 (7th Cir. 1976)).
Even if Gallo-Vasquez could show that he was offered a
bargain and advised to reject it, the record reflects that he
would not have been prejudiced by the advice. In this con-
text, prejudice means “a reasonable probability that, but for
counsel’s inadequate performance, [petitioner] would have
accepted the government’s offer.” Paters v. United States,
159 F.3d 1043, 1047 (7th Cir. 1998). The record shows
exactly the opposite: that Gallo-Vasquez rejected advice
that he plead guilty. Petitioner’s letter describes consistent
pressure from his counsel to cut a deal with the government.
Rather than succumb, Gallo-Vasquez wrote to the district
court to assert his innocence and request a new lawyer, and
filed a motion pro se demanding an attorney who would
afford him “SOME FAIR PLAY AT TRIAL.” Undeterred
when these efforts failed to garner him new counsel,
petitioner went to trial, took the stand, and steadfastly
No. 03-3385 9
professed his innocence. This record does not leave room for
a reasonable probability that, but for counsel’s advice,
Gallo-Vasquez would have accepted a plea agreement.
The statement in the last line of petitioner’s letter that he
would have been willing to plead guilty, taken in context,
does not undercut this conclusion. Gallo-Vasquez refers to
pleading guilty in this connection as an opportunity “to
prove [his] innocence” and to enable the district court to
“hear [him] out,” not as a way to accept responsibility and
punishment for his actions. Petitioner’s statements else-
where in the letter make clear that he was not willing to
plead guilty if it meant admitting that he had committed
the crime and accepting a sentence of imprisonment. Given
this record, the district court did not need to hold a hearing
to determine whether petitioner would have rejected a plea
bargain.
B. Interpreter
Petitioner also asserts that he speaks virtually no English,
and that his trial counsel was ineffective by failing to bring
an interpreter to any of their out-of-court meetings. Coun-
sel’s inability to communicate with his client because of a
language barrier may render his assistance constitutionally
ineffective. Granada v. United States, 51 F.3d 82, 85 (7th
Cir. 1995).
The record and prior proceedings demonstrate, however,
that a language barrier did not prevent petitioner and his
counsel from communicating. Gallo-Vasquez testified under
oath at trial that he spoke some English, described an ex-
change where he asked someone, in English, for directions,
and translated his own answers from Spanish to English
when the court’s interpreter hesitated momentarily. Peti-
tioner’s trial counsel also represented to the court that
Gallo-Vasquez could understand the hearing on the motion
for a new trial without an interpreter. Moreover, petitioner
10 No. 03-3385
did not raise the language barrier issue in his letter to the
district court, pro se motion to dismiss counsel, at the pre-
trial status hearing (despite the presence of a translator),
during trial, at sentencing, or on direct appeal.1
Finally, petitioner’s contentions that he speaks almost
no English and that counsel never brought a translator to
their out-of-court meetings are incompatible with his state-
ments in the letter to the district court. The letter describes
a complex debate between counsel and petitioner about
which witnesses to subpoena, what they likely would say,
and why their anticipated testimony would or would not be
relevant to the theory of defense. The letter recounts that
counsel advised petitioner to plead guilty, explained why
pleading was the best option, discussed the risks of going to
trial, and forecasted the likely sentence if convicted. This
dialogue could not have taken place if the language gap was
as wide as petitioner now claims. The district court was
correct to summarily dismiss this claim.
C. Appeal
Gallo-Vasquez also contends that his trial and appellate
counsel were ineffective in filing the notice of, and arguing,
his appeal. According to petitioner, the prosecution warned
his trial counsel that if he appealed, the government would
cross-appeal the district court’s downward departure based
on petitioner’s status as a deportable alien. Gallo-Vasquez
alleges that his trial counsel filed the notice of appeal
anyway, and never communicated the warning to him. On
1
We do not suggest that the claim was procedurally defaulted.
See Massaro v. United States, 538 U.S. 500, 509 (2003). Neverthe-
less, petitioner’s failure to complain earlier about a problem that
would have been obvious to him—an almost complete inability to
communicate with his lawyer—calls into question whether such
a problem really existed.
No. 03-3385 11
appeal, moreover, appellate counsel argued that the super-
visory-role enhancement was unwarranted, an argument
that Gallo-Vasquez contends his lawyer should have known
had no chance of success. Petitioner argues that counsel
also should have anticipated that the government’s cross-
appeal would be successful and result in a sentence en-
hancement on remand. Rather than take this one-sided
gamble, Gallo-Vasquez contends that counsel should have
advised him to forgo an appeal, and that if he had been so
advised, he would have agreed.
A defendant is entitled to effective assistance of counsel
on direct appeal. Page v. Frank, 343 F.3d 901, 909 (7th Cir.
2003). We have observed that counsel may perform compe-
tently by advising his client not to appeal when a remand
likely will do more harm than good. See Howard v. Gramley,
225 F.3d 784, 791 (7th Cir. 2000) (noting that counsel might
be wise to choose not to appeal where there is the “threat of
a sentence-enhancing remand that might make the risks of
an appeal outweigh its potential benefits”); see also United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002) (“Appellate
lawyers are not obliged to raise issues that could boomerang
on their clients; it is no failure of advocacy to leave well
enough alone.”). Petitioner asks us to recognize that counsel
who does not give this advice is incompetent.
We need not resolve the issue, however, because
petitioner’s conclusory allegations, when contrasted with
the record, do not entitle him to a hearing on the issue of
prejudice. Gallo-Vasquez’s motion alleges baldly that counsel
was warned, outside of petitioner’s presence, not to appeal.
The motion does not attach an affidavit from defense counsel
or the prosecutor supporting this allegation. It does not de-
scribe when or how the alleged warning took place, or explain
how Gallo-Vasquez came to learn of it. See Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001) (“A hearing is not
necessary if the petitioner makes allegations that are ‘vague,
12 No. 03-3385
conclusory, or palpably incredible,’ rather than ‘detailed and
specific.’ ”) (quoting Machibroda v. United States, 368 U.S.
487, 495 (1962)).
Aside from the motion, moreover, there is no indication
that the government’s cross-appeal was contingent upon
counsel’s decision to challenge the supervisory-role enhance-
ment. The government spent substantial time and energy
opposing the downward departure before the district court.
A significant majority of its brief was dedicated to arguing
against the departure, and it objected again at the sentenc-
ing hearing. We have no reason to suspect that it would
have let these efforts go to waste by forgoing an appeal,
especially if, as petitioner contends, a competent attorney
would have known that the appeal would be successful. And
a reversal would be significant to the government; the sen-
tence was increased by 75 months. Moreover, this is not a
case where the government’s cross-appeal was timely only
because the defendant appealed. See Fed. R. App. P.
4(b)(1)(B)(ii).2 The prosecution’s notice was filed within 30
days of the judgment and would have been timely regard-
less of defense counsel’s actions. See Fed. R. App. P.
4(b)(1)(B)(i). Given the absence of specific allegations or
affidavits supporting Gallo-Vasquez’s claim, and the strong
indication from the record that the government would have
appealed irrespective of counsel’s decision to challenge
petitioner’s sentence, we conclude that the district court
properly dismissed this claim without holding a hearing.
2
Appellate Rule 4(b)(1)(B) provides:
When the government is entitled to appeal, its notice of
appeal must be filed in the district court within 30 days after
the later of: (i) the entry of the judgment or order being
appealed; or (ii) the filing of a notice of appeal by any defen-
dant.
No. 03-3385 13
III. Conclusion
For the reasons stated herein, we AFFIRM the district
court’s summary dismissal of Gallo-Vasquez’s § 2255 motion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-1-05