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Penaloza v. United States

United States District Court, N.D. Illinois, Eastern Division

January 16, 2015



JOAN H. LEFKOW, District Judge.

Petitioner Nora Penaloza was convicted of one count of possession with intent to distribute cocaine and was sentenced to the statutory minimum of 120 months in custody. United States v. Penaloza, No. 08 CR 117 (N.D. Ill. Oct. 2, 2009); (Cr. dkt. 80.)[1] The Seventh Circuit affirmed Penaloza's sentence on August 5, 2011. 648 F.3d 539, 541 (7th Cir. 2011). Penaloza has filed a pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. ยง 2255, arguing that she was denied her Sixth Amendment right to effective assistance of counsel. Penaloza alleges that her attorney (1) failed to adequately communicate a plea offer, (2) improperly advised her to proceed to trial, and (3) failed to correctly explain her potential sentence. For the reasons stated below, the motion is denied.


I. Factual Background

In 2006, the Drug Enforcement Administration ("DEA") was investigating Jorge Gutierrez, a suspected broker for a Colombian drug-trafficking organization. During the course of its investigation, the DEA started working with a cooperating informant who put Gutierrez in contact with an undercover DEA agent ("the UCA"). Through the UCA, Gutierrez attempted to sell 200 kilograms of cocaine to buyers in Spain. Although Spanish law enforcement officials apprehended the buyers, the UCA told Gutierrez that he had successfully sold 130 kilograms and that Gutierrez needed to find a buyer for the remaining 70 kilograms.

Gutierrez eventually located a buyer who arranged for Penaloza to transport the cocaine from the UCA in Chicago to New Jersey. Penaloza engaged in a series of recorded telephone calls making arrangements to pick up "the llaves" (which could be translated as "keys" or "wrenches" or "faucets"). (Cr. dkt. 89, tr. at 296.) On November 6, 2006, Penaloza met the UCA in a motel parking lot in Bedford Park, Illinois, where the UCA loaded three duffel bags of sham cocaine wrapped in white paper into Penaloza's car. Penaloza began the drive to New Jersey but was stopped by police in Portage, Indiana. Penaloza eventually admitted that she had been offered $500 to retrieve packages from Chicago and return them to New Jersey. The undercover agent testified that, when Penaloza was asked if she knew the bags contained drugs, she nodded and said, "Yes." Testifying at trial, Penaloza denied this admission, denied that she knew the packages contained cocaine, and further testified that she believed she was picking up car parts, computer parts, and wrenches in Chicago.

II. Pre-Trial Proceedings

A grand jury indicted Penaloza on February 7, 2008. (Cr. dkt. 1.) The court appointed Attorney David M. Neely to represent Penaloza on September 22, 2008. Mr. Neely represented Penaloza throughout the litigation in the district court.

Penaloza alleges that before her second bail hearing, she spoke with Neely and requested that he seek a favorable plea offer for her. She indicated to Neely that she would be willing to cooperate with the government in exchange for a reduced sentence.

On February 25, 2009, the government gave Neely a packet regarding a potential guilty plea. The packet included a cover letter detailing Penaloza's projected sentence under the United States Sentencing Guidelines and a draft plea agreement. The cover letter, entitled "Nora Penaloza Guidelines Projection, " lays out the sentencing range Penaloza would face under the Guidelines if she agreed to plead guilty. (Dkt. 13, ex. 1 at 1.) According to the cover letter, Penaloza's base offense level was 36. Assuming that both a minor role reduction and timely acceptance reduction applied, her offense level would be reduced to 28. She had one prior felony theft conviction, placing her in criminal history category II. Thus, her projected Guidelines range would be 87-108 months. ( Id. ) The statutory minimum, however, would require a sentence of 120 months unless Penaloza provided the government with "some form of cooperation." ( Id. ) The cover letter explained that if she cooperated, Penaloza "could be eligible for a departure in the amount of upto [sic] 30 months [off the low end of her Guidelines range] (or a sentence of 57 months)." ( Id. ) The cover letter noted that there would be a "considerable swing" in her sentencing range should she continue to trial; if she was convicted, her Guidelines sentence would increase to 151-188 months (the government estimated an offense level of 31 and a criminal history category of II). ( Id. )

The draft plea agreement attached to the cover letter reiterates the Guidelines calculation set forth in the cover letter: 87-108 months with a 120 month mandatory minimum. It also states that the government agrees to recommend a sentence within the Guidelines range subject to the mandatory minimum. ( Id. )

On February 25, 2009, Penaloza's case was set for a hearing on a noticed motion for leave to present an entrapment defense. Penaloza alleges that before the hearing, Neely handed her a copy of the plea agreement without the cover letter. Penaloza claims that Neely spent approximately two minutes discussing the draft plea with her and then advised her to proceed to trial. Neely did not tell Penaloza that she could receive a reduction in her offense level for accepting responsibility, for her minor role, or for cooperating. He told her that if she proceeded to trial and was convicted she would face approximately seven years in prison. He advised her that the government's case was weak.

III. Trial and Sentencing

On Neely's advice, Penaloza rejected the plea and proceeded to trial. She was convicted on April 15, 2009. In preparation for sentencing, Neely submitted a memorandum noting that the statutory mandatory minimum was 120 months but recommending a 24 month sentence. ( See cr. dkt. 69.) The court sentenced Penaloza on October 2, 2009. It calculated her Guidelines offense level at 38 and her criminal history category as II, resulting in a Guidelines range of 262-327 months. The ...

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