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United States v. Flores

United States District Court, E.D. Kentucky, Central Division, Lexington

January 31, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EDGAR LERMA FLORES, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Defendant Edgar Lerma Flores claims that his true name is “Carlos Alberto Penuelas Rodriguez”. However, he has used “Edgar Lerma Flores” as well as other aliases while in the United States illegally. [See Presentence Investigation Report, p. 3, filed under seal pursuant to Rule 32 of the Federal Rules of Criminal Procedure; Record No. 157.] Flores was arrested in Lexington, Kentucky, in May 2015 and later indicted for conspiring to distribute significant quantities of controlled substances and distributing those controlled substances within the Eastern District of Kentucky. [Record No. 17] A jury trial for Flores and several co-defendants was originally scheduled to begin August 17, 2015. [See Record Nos. 25, 26, 27, 28, 30, and 31.] However, that date was extended to October 7, 2015, at the request of several of the defendants. [Record No. 47]

         On August 17, 2015, two of the defendants [Romeo Beltran and Eric Ricardo Canto] filed motions to be re-arraigned for the purpose of entering guilty pleas. And each defendant agreed to cooperate with the United States in the investigation and prosecution of others, including their co-defendants in the case. [Record Nos. 48 and 49] The remaining four defendants - including Flores - filed motions for re-arraignment on September 28, 2015 (two days prior to the final pre-trial conference and in accordance with paragrap. 4(a) of the Court's Pretrial and Discovery Order). [See Record Nos. 60, 62, 63, 64 and 29.] Those motions were granted and change-of-plea hearings were scheduled for Defendants Didier Olvera Romero, Reynaldo Salgado Valle, and Alan Solis Ballados for September 30, 2015. Flores change-of-plea hearing was scheduled and held on October 7, 2015. Thus, by the time he appeared for re-arraignment, all of his co-defendants had entered guilty pleas and two had agreed to cooperate with the government.

         Flores's guilty plea was entered at a hearing held on October 7, 2015. The hearing proceeded without incident. However, following Flores's sentencing hearing, the defendant unsuccessfully filed a direct appeal, challenging the sentence imposed by the Court. In relevant part, Flores argued on appeal that the Court erred by failing to provide notice that he would be sentenced above his Guidelines range. [Record No. 198] The mandate affirming Flores's sentence was filed August 24, 2017. [Record No. 199] However, Flores later claimed that his appellate counsel had failed to file a petition for certiorari with the Supreme Court as he had requested. As a result of that claim, Flores moved the United States Court of Appeals to recall the mandate. That request was denied May 31, 2018. [Record No. 207]

         Flores filed a motion to vacate, set aside or correct his sentence pursuant to 18 U.S.C. § 2255 on August 3, 2018. Flores raised a host of claims in his motion, including arguments that his trial and appellate counsel “rendered deficient performance” by: failing to secure a more favorable plea agreement with a “certified cap condition” [i.e., a binding plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure]; lack of knowledge and failure to argue relevant provisions of the United States Sentencing Guidelines; failing to prepare for the sentencing hearing; “failure to clarify evidence to antagonize court's misestimation of character with mitigating & characteristic material evidence”; “failure to include ‘guarded' meritorious issues for [appellate] review and “refusal to submit writ of certiorari as instructed”; and allowing introduction of perjured testimony during the sentencing hearing. [Record No. 209] Flores also claimed that one of his trial attorneys, Dan Carman, provided ineffective assistance by promising that he had obtained a “benign bargain” with the government whereby the defendant would receive a sentence of approximately four to seven years in exchange for his guilty plea. [Record No. 209-1, pp. 4-5]

         With one exception, Flores claims were rejected in a Memorandum Opinion and Order filed November 16, 2018. [Record No. 220] However, the Court determined that an evidentiary hearing was needed to resolve the defendant's claim that his attorney, Dan Carman, promised him that he would receive a sentence of five to seven years' imprisonment if he simply followed Carman's instructions and pleaded guilty. The Court conducted an evidentiary hearing on January 29, 2019, during which Flores and his trial attorneys [Carman and Joseph Lopez] testified regarding the circumstances surrounding Flores's guilty plea.

         Having considered all testimony and evidence, the Court finds that attorney Carman did not promise a sentence of four to seven years (or any other term of years) in allegedly convincing Flores to enter a guilty plea. Likewise, Carman did not apply any undue pressure in connection with the defendant's change-of-plea. The Court also finds that Flores was not mistaken but, instead, fully understood the potential penalties in the case. In short, because the Court concludes that Flores's counsel did not render ineffective assistance and that his guilty plea was knowing and voluntary, the § 2255 motion will be denied.[1]

         I.

         Flores was charged in June 2015 with conspiring to distribute 5 kilograms or more of a mixture or substance containing cocaine (count 1); conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine (count 2); possessing with the intent to distribute 5 kilograms or more of a mixture or substance containing cocaine (count 6); and possessing with the intent to distribute 500 grams or more of a mixture or substance containing methamphetamine (count 7). [Record No. 17] Initially, counsel was appointed pursuant to the Criminal Justice Act. However, Flores's family later retained Carman. Flores filed a motion for re-arraignment on September 28, 2015, with Carman's assistance. Under the proposed plea agreement, Flores agreed to plead guilty to counts 1 and 2, each of which carried a statutory penalty of not less than ten years' imprisonment. [Record No. 124, p. 4] The government agreed to move to dismiss the remaining counts.

         The pertinent facts are outlined in the plea agreement and provide the following:

         Law enforcement officers developed a cooperating source (“CS”) in April 2015 who was able to purchase methamphetamine from Flores's co-defendant Romeo Beltran. [Record No. 124, pp. 2-4] Beltran and another co-defendant, Eric Canto, sold methamphetamine to the CS on three occasions between April and May 2015. The CS and an undercover law enforcement officer (“UC”) arranged the final transaction on May 13, 2015. Agents observed Canto meeting with the CS and UC near North Broadway in Lexington, Kentucky. Agents then followed Canto to an address on Lighthouse Lane, where he went inside. Within a few minutes, the garage door at the Lighthouse Lane residence opened and a tan Tahoe exited. Canto then came out of the residence with a plastic bag containing eight ounces of crystal methamphetamine, which he delivered to the CS and UC. He was stopped by law enforcement officers after Canto left the transaction spot.

         The tan Tahoe previously observed leaving the Lighthouse Lane residence passed within feet of Canto's vehicle while it was stopped by law enforcement. Shortly thereafter, the Tahoe arrived back at the Lighthouse Lane location and backed into the garage. The Tahoe left the location again within a few minutes and also was stopped by law enforcement. Defendant Flores and others were inside the Tahoe, which contained five kilograms of cocaine hidden inside an air compressor. A subsequent search of the Lighthouse Lane residence produced an additional kilogram of cocaine and approximately seven pounds of crystal methamphetamine.

         Flores admitted that he had engaged conspiracies to distribute methamphetamine and cocaine, as outlined in the plea agreement. Specifically, he conceded that he and the other individuals in the Tahoe were from Chicago and had supplied the methamphetamine that Beltran and Canto sold to the CS and UC. Flores further admitted that he and the other individuals in the Tahoe had come from Chicago and brought 2.925 kilograms of methamphetamine to the Lighthouse Lane residence. He and the others would remain at the Lighthouse Lane residence until a “good portion” ...


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