Cadavid-Yepes v. United States

635 F. App'x 291
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 6, 2016
DocketNo. 14-2210
StatusPublished
Cited by12 cases

This text of 635 F. App'x 291 (Cadavid-Yepes v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cadavid-Yepes v. United States, 635 F. App'x 291 (6th Cir. 2016).

Opinion

KAREN NELSON MOORE, Circuit Judge.

Petitioner-Appellant Juan Cadavid-Yepes (“Cadavid”) appeals from the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255. Ca-david pleaded guilty, pursuant to a written plea agreement, to the importation of a listed chemical in violation of 21 U.S.C. § 960(d)(1) and 18 U.S.C. § 2. The charge arose out of Cadavid’s involvement in shipping samples of chemicals used in the production of methamphetamine into the United States from Colombia. During his plea colloquy, Cadavid acknowledged that he and the government disagreed on the relevant drug quantity for the purposes of sentencing. After taking evidence at the sentencing, the district judge imposed a sentence pursuant to the government’s recommended calculation. Cadavid appealed his guilty plea and sentence, and we affirmed. Cadavid subsequently filed a motion under 28 U.S.C. § 2255, arguing that his attorney was constitutionally ineffective because the attorney failed to obtain exculpatory evidence and because the attorney advised Cadavid that he was pleading to “time served.” The district court denied Cadavid’s motion. For the reasons discussed below, we AFFIRM.

I. BACKGROUND

Cadavid was charged in a three-count sealed indictment in 2006 and was extra[293]*293dited from Colombia to the United States. On December 4,2008, a grand jury handed down a superseding indictment charging Cadavid with (1) conspiracy to manufacture a controlled substance, namely methamphetamine, in violation of 21 U.S.C. § 846; (2) conspiracy to possess a listed chemical — specifically, ephedrine and phe-nylpropanolamine (“PPA”) — with the intent to manufacture a controlled substance, in violation of 21 U.S.C. § 846; and (3) importation of listed chemicals, in violation of 21 U.S.C. § 960(d)(1) and 18 U.S.C. § 2. R. 8 (Superseding Indictment) (Page ID # 18-20).

On September 9, 2009, Cadavid pleaded guilty to Count 3 pursuant to a written plea agreement. R. 44 (Plea Agreement) (Page ID # 75). According to the agreement, in May 2006 Cadavid sent a package by mail from Colombia to Detroit, Michigan. Id. at 2 (Page ID # 76). DEA agents seized the package and found that it contained two one-gram samples of ephedrine and PPA hidden inside of two ballpoint pens. Id. at 2 (Page ID # 76). Cadavid intended to ship the samples to an individual who he “believed represented drug traffickers in Michigan interested in purchasing large quantities of ephedrine and phenylpropanolamine for the purpose of manufacturing methamphetamine.” Id. The individual to whom Cadavid sent the package, however, was a DEA confidential source. Id. Cadavid had been in contact with the confidential source since March 2006. Id. Over the course of several meetings and conversations, Cadavid had expressed to the confidential source that he represented Colombians “who were willing and able to sell large quantities of chemicals” to individuals in Michigan. Id. Cada-vid sent the samples to Detroit in order for the chemicals to be “tested and evaluated by the prospective purchasers.” Id. at 2-3 (Page ID # 76-77).

The written plea agreement indicated that the parties disagreed about Cadavid’s Sentencing Guidelines range. Id. at 3 (Page ID # 77). According to Cadavid, - the appropriate Guidelines range was 21 to 27 months of imprisonment because Cada-vid was responsible for only the quantity shipped inside of the pens; “2 to 4 grams.” Id. at 16 (Page ID # 90). The government, however, believed that the appropriate range was 97 to 121 months of imprisonment because Cadavid was responsible for “3 kilos or more ephedrine or PPA.” Id. at 8 (Page ID # 82). This larger quantity was based on the sale of a drum of chemicals to the confidential informant that occurred in Colombia in September 2006, after Cadavid’s arrest. R. 68 (6/9/10 Sentencing H’rg Tr. at 27) (Page ID # 257). According to the government, Ca-david brokered the deal and introduced the informant to the seller of the drum, Edgar Bohorquez. Id. at 26-27 (Page ID # 256-57). The plea agreement indicated that “[t]he Court is not bound by either party’s recommendation ... and defendant understands that he will have no right to withdraw his guilty plea if the Court does not follow his recommendation.” R. 44 (Plea Agreement at 3) (Page ID #77). • The plea agreement was written in English, which Cadavid — a native Spanish-speaker — does not speak. The district court used an interpreter to communicate with Cadavid during his plea colloquy. R. 46 (Plea H’rg Tr. at 3) (Page ID # 102). Cadavid confirmed during his plea colloquy that he discussed his plea with his attorney, that he went over the written plea agreement with his attorney, and that he was satisfied with his attorney’s services. Id. at 6-7, 9 (Page ID # 105-06,108). The district court also discussed the sentencing disagreement during the plea colloquy. Id. The district court confirmed that Cada-vid understood that the government recommended 97 to 121 months of imprison[294]*294ment, while the defendant recommended 21 to 27 months. Id. at 10-11 (Page ID # 109-10). The district court asked whether Cadavid understood that “[a]t the sentencing the Court will determine the proper guideline range.” Id. at 11 (Page ID # 110). Cadavid responded “Yes, Your Honor.” Id. Cadavid also indicated- that he understood that the district court would “also look at other factors to determine the appropriate sentence.” Id. Cadavid further affirmed that he understood that if the district court sentenced him “under either parties’ [sic] guideline range,” then he waived his right to appeal. Id. at 12 (Page ID #111). Finally, the district court asked Cadavid whether there were “any side deals” made with his attorney and the government. Id. at 13 (Page ID ' # 112). Cadavid responded “no” and further affirmed that he was pleading guilty voluntarily. Id.

The district court held an evidentiary hearing on June 9, 2010 to determine the appropriate Sentencing Guidelines range. • R. 68 (6/9/10 Sentencing H’rg Tr. at 1) (Page ID # 231). The government called DEA Agent Lance Gibson to testify regarding Cadavid’s discussions with the confidential informant. Id. at 16 (Page ID #246). Agent Gibson testified that the DEA’s “informant was playing a broker role where he was making a deal between Cadavid and his drug trafficking organization in Detroit.” Id. at 20 (Page ID # 250). According to Agent Gibson, Cada-vid and the informant “discussed large quantities, multiple drums of Ephedrine,” that Cadavid would be able to broker between Colombia and Detroit. Id. at 23 (Page ID # 253). Agent Gibson also stated that the informant told Cadavid that the ephedrine “was going to Detroit to be processed into Meth.” Id.

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Bluebook (online)
635 F. App'x 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cadavid-yepes-v-united-states-ca6-2016.