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United States of America v. Hipolito Alcala

May 3, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HIPOLITO ALCALA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-CR-00190--Rudolph T. Randa, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED APRIL 4, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and MANION, Circuit Judges.

Hipolito Alcala pled guilty to a single count of unlawfully using a communication facility to further a drug trafficking offense. After the district court accepted his plea, but before sentencing, he moved to withdraw his plea. Despite the fact that, in his plea agreement, he waived his right to appeal his conviction, he now attempts to appeal the district court's denial of his motion to withdraw his plea. He argues that he did not knowingly and voluntarily waive his right to appeal, stressing his background as a native Spanish-speaker with an eighth grade education. We dismiss the appeal.

I. Background

Hipolito Alcala ("Alcala") was charged with con- spiracy to possess with the intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1); fifty grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A); and one kilogram or more of heroin, 21 U.S.C. § 846. Initially, Alcala pled not guilty, and a two-day jury trial commenced on August 16 and 17, 2010. After several Government witnesses testified against him, Alcala informed the court that he intended to plead guilty. He and the Government agreed that he would plead to a reduced charge of unlawful use of a communication facility to further a drug trafficking offense, 21 U.S.C. §§ 841(a)(1), 843(b).

On August 17, 2010, the Government filed an Informa- tion charging Alcala with the reduced charge. Alcala pled guilty to this offense, signing a Waiver of Indict- ment. His plea agreement contained the following provi- sion:

Based on the government's concessions in this agree- ment, the defendant knowingly and voluntarily waives his right to appeal his sentence in this case and further waives his right to challenge his convic- tion or sentence in any post-conviction proceeding, including but not limited to a motion pursuant to 28 U.S.C. § 2255. This waiver does not extend to an appeal or post-conviction motion based on (1) any punishment in excess of the statutory maximum, (2) the sentencing court's reliance on any constitu- tionally impermissible factor, and (3) ineffective assistance of counsel.

The same day, Alcala appeared before the district court, which conducted his plea colloquy. During the plea colloquy, the district court asked Alcala about the extent of his education, whether he had ever been declared mentally incompetent or institutionalized, whether he was undergoing psychological or psychiatric care at the time, and whether he was using any medica- tions or any type of drug that would affect his compre- hension of the proceedings. Alcala answered that he had completed "eight years" in school and "no" to the other questions. The district court asked him whether he had any questions either for counsel or for the court about the pleading process or the plea itself, and Alcala answered negatively. The district court also asked him whether he was satisfied with his counsel's representation thus far, and Alcala responded affirmatively. Finally, the district court stated:

How do you plead to the charge? That is, Count 1 of this Information? Guilty or not guilty? But, before you answer, there is one other thing that's been waived here that I haven't discussed, and that's Para- graph 32. It says here that you knowingly and volun- tarily waive your right to appeal the sentence and your right to challenge this conviction in any post-conviction proceeding, including but not limited to a motion pursuant to 2255 of Section 28 of the United States Code. But that this waiver does not extend to an appeal or post-conviction motion based on any punishment in excess of the statutory maximum, or if I rely upon any factor that's not permitted by the Constitution. Or, if in any way, Mr. Erickson is ineffective in representing you. Do you understand that that's waived when you plead guilty, Mr. Alcala?

Alcala answered "Yes." The district court, therefore, accepted his plea.

On August 24, 2010, Alcala filed a letter with the district court, ostensibly without the assistance of counsel, requesting to withdraw his guilty plea and be tried by jury. His attorney moved to withdraw as counsel, at which time the district court appointed new counsel.

On December 2, 2010, Alcala filed a motion to withdraw his plea with supporting affidavit. The district court denied his motion and imposed a 34-month sentence, which amounted to time served, as well as one year of supervised release and a $100 special assess- ment.

Alcala appeals, contending that he did not knowingly and voluntarily waive his right to appeal and that the district court erred in denying his motion to withdraw his plea. Because we find that Alcala's waiver was valid and encompassed his right to appeal the district court's denial of his motion ...


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