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United States v. Ortiz-Vega

United States Court of Appeals, First Circuit

June 21, 2017

ANGEL ORTIZ-VEGA, Defendant, Appellant.


          Rafael F. Castro Lang for appellant.

          Nelson Pérez-Sosa, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         Appellant Angel Ortiz-Vega ("Ortiz") was charged with several counts related to a drug distribution conspiracy in Puerto Rico. Ortiz was originally represented by court-appointed counsel, Francisco M. Dolz-Sanchez ("Dolz"), but after seven months retained private counsel, Luis R. Rivera-Rodriguez ("Rivera"), because, according to Ortiz, Dolz failed to provide him with effective assistance of counsel throughout plea negotiations. Ortiz raised his ineffective assistance claim at several points prior to sentencing, claiming that Dolz's lack of adequate communication cost him a better plea deal. The district court declined to rule on Ortiz's ineffective assistance claim prior to sentencing, finding the motion to be "premature." Ortiz eventually pled guilty to a higher plea offer negotiated by his new counsel and was sentenced in accordance with that agreement.

         On appeal, Ortiz argues, inter alia, that the district court erred by refusing to rule on the merits of his ineffective assistance claim prior to sentencing. For the reasons discussed below, we agree with Ortiz and remand the case to the district court for further proceedings.


         In the summer of 2011, Ortiz was charged in a nine-count superseding indictment along with over a hundred other co-defendants allegedly involved in a large-scale drug conspiracy. For his role, Ortiz was charged with conspiracy to possess with intent to distribute various controlled substances including heroin, cocaine, marijuana, Percocet, and Xanax, as well as the actual possession of those substances with intent to distribute them, within a thousand feet of a public school in violation of 21 U.S.C. §§ 841, 846, and 860 (Counts I-IV). Ortiz was also charged with aiding and abetting others in the use or possession of firearms during the drug offenses in violation of 18 U.S.C. § 924(c) and 2 (Count V).

         On August 6, 2012, Ortiz ultimately entered into a non-binding plea agreement with the government, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), in which he agreed to plead guilty to the conspiracy and firearms charges (Counts I and V) with an applicable United States Sentencing Guidelines ("Guidelines") range of 168-180 months on both counts. See United States v. Torres-Oliveras, 583 F.3d 37, 41 (1st Cir. 2009) (discussing the difference between non-binding Type B and binding Type C plea agreements). The journey to reach this point of agreement had proven long and contentious, with Ortiz switching counsel and his previous (court-appointed) counsel, his current (privately-retained) counsel, and the government each making conflicting assertions as to the facts surrounding Ortiz's plea negotiations. We necessarily discuss the facts surrounding Ortiz's plea negotiations, since they form the basis of his present appeal and assertion that the district court erred in failing to rule on his ineffective assistance claim prior to sentencing.

         1. Plea Negotiations

         Ortiz was arrested on the drugs and firearm charges described above in late June 2011. At that time, Dolz was appointed as his attorney. Dolz asserts that he first met with Ortiz in July 2011 to discuss the charges lodged against Ortiz and to conduct a full client interview. On January 24, 2012, six months after his arrest, Ortiz filed a pro se "Motion for Lawyer Dismissal" in which he requested that Dolz be "released from his position on [sic] [Ortiz's] case" because, according to Ortiz, Dolz had "acted in a [sic] unreasonable way" and had not communicated with him since he had been imprisoned. The court did not respond to Ortiz's pro se motion until six months after it was filed (after Ortiz had replaced Dolz with a privately-retained attorney), and the court ultimately dismissed Ortiz's pro se motion as moot given his retention of new counsel. The parties dispute how often Dolz communicated with Ortiz and the substance of their communications during plea negotiations.

         According to Dolz, after Ortiz filed his pro se motion, Dolz reached out to the government via email to discuss a possible plea offer.[1] Dolz asserts that he then visited Ortiz on March 6, 2012 -- some eight months after first interviewing Ortiz -- to further discuss Ortiz's case. Dolz claims that at this meeting Ortiz stated that he would only accept a plea offer of eighty-four months (or seven years) for both counts.

         On March 19, 2012, the government offered Ortiz a plea deal well above seven years, with a Guidelines range of 130-147 months (or between a little over ten and a little over twelve years) on both counts. Dolz claims that he visited Ortiz again on April 7, 2012 to communicate the 130-147 month plea offer. According to Dolz, he advised Ortiz to take the offer, but Ortiz rejected it and reiterated that he would only accept a plea deal of seven years on both counts, or that he would go to trial. Dolz claims that as soon as he exited the prison after meeting with Ortiz, Ortiz's wife called and informed him that Ortiz no longer wanted to present a counteroffer of seven years to the government as they had just discussed, but instead wanted to present a counteroffer of sixty months on the conspiracy charge (Count I) and wanted the firearms charge (Count V) to be dismissed altogether.

         Accordingly, on April 12, 2012, Dolz emailed the government Ortiz's counteroffer of sixty months. The government responded to Dolz's email with a one-liner: "Rejected. See you in trial then?" The record is ambiguous as to whether Dolz ever responded to this rejection of Ortiz's counteroffer, but it does indicate that Dolz may not have communicated with Ortiz again regarding plea negotiations until after Ortiz had retained new counsel three months later in July 2012.

         Dolz asserts that at some point after Rivera had been retained (on July 24, 2012), but presumably prior to Dolz's last meeting with Ortiz on the following day (July 25, 2012), he communicated with the government via email to see if the 130-147 month offer was still on the table. Dolz claims that the government informed him that the original offer had expired and that the new offer was 180 months, which the government had also communicated to Rivera. Dolz also indicated that the government was mistaken in its statement that the original offer had expired and claimed that he believed that the original offer of 130-147 months had not expired and would not expire until July 31, 2012 -- the date set by the court for any change of plea.

         On July 25, 2012, the day after Rivera filed his appearance in the case, Dolz claims that he visited and informed Ortiz that "there was a plea offer outstanding and that July 31, 2012 was the deadline for the [change of plea] motion." It is unclear from the record whether the "outstanding plea offer" referenced by Dolz was the new 180 month offer or the previous 130-147 month offer which Dolz apparently believed had an expiration date of July 31, 2012.[2] Dolz also asserts that at this final July meeting, he informed Ortiz that his previous counteroffer of sixty months had been rejected and that there was nothing else Dolz could do since Ortiz had retained Rivera to handle his case. Despite Ortiz retaining new counsel, Dolz contends that the government continued to communicate with him concerning Ortiz's case and that on July 31, 2012 the government sent him a new plea offer of 168-180 months that was slated to expire on August 1, 2012.

         The government mostly agrees with Dolz's account of plea negotiations, but also states that after rejecting Ortiz's counteroffer of sixty months, it understood that the original 130-147 month offer had been rescinded.

         As expected Ortiz has a very different view of what occurred during plea negotiations. According to Ortiz, Dolz only visited him twice: once on April 7, 2012 to communicate the original 130-147 month plea offer and again after Ortiz had retained Rivera as his new counsel.[3] Ortiz claims that Dolz failed to keep him updated concerning plea negotiations and failed to communicate with him after the government rejected his counteroffer. In response to Ortiz's assertions, at a hearing before the district court, Dolz said that he "saw [Ortiz] as [he] need[ed] to see him" and that Ortiz was given the information needed regarding his case despite his assertion that Dolz only visited him twice. At another hearing, Ortiz countered that he never communicated to Dolz that he would rather go to trial, and that he always wanted to plead guilty, but that he was looking for the best deal. Of course, Dolz denied these contentions.

         2. Plea Agreement

         Regardless of the back and forth alleged by Ortiz and Dolz concerning plea negotiations, Ortiz did finally enter into a plea agreement with the government that was negotiated by his new counsel Rivera. According to Rivera, by the time he got involved with the case, the government refused to offer Ortiz the original plea offer of 130-147 months, claiming that its initial offer had expired. Ortiz alleges that he was faced with the choice ...

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