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United States of America v. Elisia Cruz

July 18, 2011

UNITED STATES OF AMERICA
v.
ELISIA CRUZ



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

On May 26, 2009, agents and officers of the Drug Enforcement Administration searched the home of Defendant Elisia Cruz, with her written consent, and discovered 286 grams of heroin in the bedroom closet, $22,042 in cash and two scales in the bedroom, and two stamps commonly used to brand narcotics packages and bearing the marks "XXX" and "Iverson" in the basement. Defendant's home is within 1,000 feet of the James J. Sullivan School, a public elementary school in Philadelphia. On March 11, 2010, a two-count Superseding Information charged Defendant with possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count One), and possession with intent to distribute 100 grams or more of heroin within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a) (Count Two). The same day, Defendant waived her right to prosecution by indictment and pled guilty to both counts pursuant to a written Guilty Plea Agreement with the Government. On March 12, 2010, the Government filed the Guilty Plea Agreement, which was signed by both parties. In the Guilty Plea Agreement, Defendant "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [her] conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under . . . 28 U.S.C. § 2255, or any other provision of law." (Guilty Plea Agreement ¶ 8.) Nevertheless, Defendant has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.

Defendant asserts that she did not receive, prior to sentencing, a copy of the Pre-Sentence Investigation Report ("PSI") prepared by the United States Probation Office in connection with her sentencing. She suggests that the PSI may have contained errors, and argues that consequently we should reduce her sentence. The Government has filed a Motion to Dismiss Defendant's Motion on the basis of the appellate and collateral attack waiver contained in her Guilty Plea Agreement. For the reasons that follow, we grant the Government's Motion and dismiss Defendant's Motion.

The United States Court of Appeals for the Third Circuit has held that a waiver of appellate or collateral attack rights is enforceable provided that (1) it was entered into knowingly and voluntarily; (2) no specific exception set forth in the agreement applies; and (3) enforcement of the waiver would not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citing United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008)); see also United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001); United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007).

We first "consider whether there is record evidence that [Defendant] knowingly and voluntarily signed the waiver." United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). We look first to the language of the waiver, and then to the plea colloquy. See United States v. Mabry, 536 F.3d 231, 238 (3d Cir. 2008) (citing Gwinnett, 483 F.3d at 203-04). The language of Defendant's Guilty Plea Agreement clearly provides that, with only limited exceptions, she waived her right to attack her conviction and sentence pursuant to 28 U.S.C. § 2255. (Guilty Plea Agreement ¶ 8.) Moreover, Defendant signed both the Guilty Plea Agreement and an Acknowledgment of Rights, acknowledging that she had fully discussed the Guilty Plea Agreement with her attorney and that she understood that she was waiving her right to appeal or collaterally attack her conviction or sentence, except as set forth in the waiver provision. (Id. ¶ 10; Acknowledgment of Rights ¶ 6.)

Prior to accepting Defendant's guilty plea, we conducted a plea colloquy pursuant to Federal Rule of Criminal Procedure 11, which provides as follows:

(b)(1) Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands . . .

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

Fed. R. Crim. P. 11(b)(1); see also Gwinnett, 483 F.3d at 204. During the plea colloquy, we confirmed that Defendant had read the Guilty Plea Agreement and discussed it completely with her attorney. (3/11/10 Hr'g Tr. at 11-12.) We asked Defendant whether she had been threatened, coerced, or forced into pleading guilty; she answered that she had not been. (Id. at 14, 24.) We also asked Defendant whether anyone had made any promises to her that were not contained in the Guilty Plea Agreement, to induce her change of plea; she answered that no one had done so. (Id. at 14.) We asked whether Defendant had made the decision to plead guilty of her own free will; she answered that she had. (Id. at 25.) We also conducted the following colloquy with Defendant with respect to the waiver:

THE COURT: And if at trial you were actually found guilty, then after that trial you'd be able to appeal that guilty verdict to an appellate court, and you could have a lawyer represent you in such an appeal, and the appellate court might reverse the conviction. Do you understand that?

THE INTERPRETER: Yes.

THE COURT: Now, by pleading guilty, you are giving up your right to appeal from any conviction after trial, because there will be no trial. Ordinarily, the only appeal that you would have from a guilty plea, would be if I imposed an illegal sentence, or if there are any errors in this proceeding, or the sentencing proceeding. Now, you have, however, entered into a plea agreement which does contain an appellate waiver provision which is more narrow, generally allowing you to appeal only where the Government appeals, the Court imposes a sentence in excess of the statutory maximum, and/or the Court imposes an upward departure, a variance from the advisory guideline range. Do you understand those things?

THE INTERPRETER: Yes, I do. (Id. at 17-18.) Following our colloquy with Defendant, we found that she was competent to plead; that her plea was voluntary and not the result of force, threats, or promises apart from the Guilty Plea Agreement; and that she understood the charges against her, her legal rights, and both the maximum possible penalties she faced and the mandatory minimum penalty she faced. (Id. at 27.)

In sum, the Guilty Plea Agreement, the Acknowledgment of Rights, and our colloquy with Defendant demonstrate that Defendant was fully informed of her rights, the Government's obligations, and the nature of the appellate and collateral attack waiver. Furthermore, Defendant indicated by both her execution of the Guilty Plea Agreement and her sworn responses to our questions, that she had consulted with her attorney and understood the waiver. Therefore, we find that Defendant ...


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