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United States v. Cardona-Vicenty

United States Court of Appeals, First Circuit

December 2, 2016

UNITED STATES OF AMERICA, Appellee,
v.
JOSE D. CARDONA-VICENTY, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District Judge]

          Jose Luis Novas-Debien, III for appellant.

          Julia Meconiates, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Francisco A. Besosa-Martínez, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney were on brief, for appellee.

          Before Lynch, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         Jose D. Cardona-Vicenty ("Cardona") pled guilty to conspiring to distribute narcotics near three public housing projects and possessing a firearm in furtherance of the drug trafficking offense. After accusing his first lawyer of coercing him into accepting a plea agreement, Cardona was appointed new counsel for sentencing purposes. On appeal, Cardona argues that the district court's assignment of new counsel, who also represented a co-defendant in the drug trafficking conspiracy, resulted in a conflict of interest for counsel number two. He also claims that the district court erred in failing to hold a Foster hearing to address the purported conflict. Cardona insists that these errors require us to vacate his sentence and remand the case for resentencing with new counsel. But because there was no clear error with the sentencing court's fact finding and no actual conflict of interest, we affirm the sentence imposed below.

         Background [1]

         On April 23, 2014, Cardona was indicted, along with forty-seven co-defendants, for his involvement in a drug trafficking conspiracy which operated out of three public housing projects in Mayagüez, Puerto Rico. Several months later, Cardona pled guilty to Counts One and Six of the indictment pursuant to a Plea Agreement (the "Agreement"). Count One charged him with conspiring to possess with the intent to distribute various amounts of heroin, cocaine, crack cocaine, and marijuana within a thousand feet of the three public housing projects, in violation of 21 U.S.C. §§ 841(a)(1), 860, and 846. Count Six charged him with carrying and using a firearm in relation to the drug trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (2). The remaining charges against him (Counts Two through Five) were dismissed pursuant to the Agreement.

         By the terms of the Agreement, the parties agreed to calculate Cardona's total offense level at 33, but made no stipulation as to Cardona's Criminal History Category.[2] The parties agreed to recommend a sentence at the lower end of the Sentencing Guidelines (the "Guidelines") range for the possession count and the mandatory minimum of five years for the firearm charge. Additionally, Cardona agreed to waive his right to appeal the judgment and sentence if sentenced in accordance with the terms and conditions of the Agreement. And the government agreed that it would not seek any further adjustments to or departures from Cardona's offense level outside of the enhancements already applied.

         On August 27, 2014 (20 days after Cardona's change of plea, but before sentencing), Cardona's attorney at the time, Peter Diaz-Santiago ("Diaz"), moved to withdraw because Cardona had accused Diaz -- falsely, in Diaz's opinion -- of coercing him into pleading guilty. In response to Diaz's motion, the district court set a hearing date -- September 15, 2014 -- to learn the details surrounding Cardona's claims and Diaz's desire to withdraw. The district court requested that Miguel Oppenheimer ("Oppenheimer"), an attorney for one of Cardona's drug trafficking co-defendants, attend the hearing "to assist if need be."

         At the proceeding, Cardona sought to withdraw his guilty plea. As per the court's instruction, Oppenheimer interviewed Cardona and Diaz to better understand the circumstances surrounding Cardona's attempts to withdraw his plea and Diaz's request to withdraw as defense counsel. After meeting with both Cardona and Diaz, Oppenheimer summarized their respective positions for the court and then questioned both individuals under oath. Cardona testified that he felt pressured to either accept the plea deal or go to trial and receive a life sentence if convicted. On the other hand, Diaz stated that he met with Cardona on multiple occasions to discuss the charges against him, denied Cardona's allegations of coercion, and stated that although Cardona was unhappy with the amount of time offered in the Agreement, Cardona still chose to plead guilty and never indicated that he was hesitant to accept the plea or that he did not want to sign the Agreement. Rounding out the dispute, the government argued that Cardona's request to withdraw his plea should be denied because he was essentially attempting to re-negotiate his plea deal -- as the government saw it, he still wanted to plead guilty; he just wanted a better deal.

         After hearing from Cardona, Diaz, and the government, the district court denied Cardona's request to withdraw his guilty plea, finding his allegations against his attorney to be "totally frivolous" and ultimately granted Diaz's request to withdraw, assigning Oppenheimer as Cardona's new counsel for sentencing purposes. Upon Oppenheimer's appointment, the government vocalized concerns regarding a potential conflict of interest arising from a murder that Cardona had allegedly ordered from jail that was ultimately executed by a co-defendant who was also represented by Oppenheimer. The government opined that this might cause a conflict because Oppenheimer "might want to argue one way for one defendant and another way for another defendant" and accordingly remarked that a Foster hearing[3] might be necessary. However, the court did not believe that an actual conflict existed, noting that neither the Agreement nor any facts included in the Agreement contained anything regarding the alluded-to murder and that the murder was not at issue in Cardona's case.

         In any event, Oppenheimer advised the court that he would check with Cardona's co-defendant to ensure that there were no potential conflicts and he would let the court know if a Foster hearing was necessary. Oppenheimer never informed the court of any conflict and proceeded to represent Cardona for sentencing purposes. On December 7, 2014, after Cardona's co-defendant had already been sentenced for his role in the drug trafficking conspiracy pursuant to his own plea agreement and two days before Cardona's sentencing hearing, Oppenheimer filed a sentencing memorandum reiterating, among other things, Cardona's wish to recant his guilty plea.

         On the day of the hearing, Cardona pressed his contention that he was coerced into pleading guilty. But after hearing Cardona's reiterated plaint, the court reminded Cardona that it had already denied his ...


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