                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

USA v. Hidalgo
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4885




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"USA v. Hidalgo" (2008). 2008 Decisions. Paper 1698.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1698


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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 06-4885
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 EVELYN HIDALGO,

                                            Appellant

                    On Appeal from the United States District Court
                             for the District of New Jersey
                             D.C. Criminal No.04-cr-00823
                       District Judge: Hon. Katharine S. Hayden

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 7, 2008

       Before: FUENTES, JORDAN, Circuit Judges and O’NEILL, District Judge *

                           (Opinion Filed: January 28, 2008)

                              OPINION OF THE COURT


O’NEILL, District Court Judge.




   *
   Honorable Thomas N. O’Neill, Jr., District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
       On this appeal from the sentence she received after being convicted of drug

trafficking, Evelyn Hidalgo contends that she did not receive effective assistance of

counsel. Finding no error and also concluding that Hidalgo received effective assistance

of counsel, we will affirm the judgment of sentence.

       Because we write solely for the parties’ benefit, we assume familiarity with the

case and discuss only those facts necessary to our decision. Hidalgo waived prosecution

by indictment and pled guilty to a one-count information charging her with conspiracy to

import 500 grams or more of cocaine into the United States contrary to 21 U.S.C.

§§952(a) and 960(b)(2)(B) in violation of 21 U.S. C. § 963. A sentencing hearing was

held on her conviction on March 2, 2005. The District Court determined the base offense

level to be 30, allowed a three point reduction for acceptance of responsibility, and fixed

the adjusted offense level at 27. Based on Hidalgo’s criminal history (convictions for

petit larceny in April 1982, February 1983, March 1998 and February 2002, respectively),

the District Court determined her criminal history to be category II. Hidalgo’s trial

counsel did not object to the category II determination.

       Prior to accepting Hidalgo’s plea, the District Court conducted a colloquy with her.

During the course of the colloquy Hidalgo confirmed that trial counsel explained all of

the terms of her plea agreement. Hidalgo stated that she understood inter alia: the

nature of the charges against her, the offenses to which she was pleading guilty, the

possible sentencing ranges for both criminal history categories I and II, and that she was



                                             2
waiving her right to appeal both her sentence and post-conviction relief. Under the U.S.

Sentencing Guidelines, the resulting range for offense level 27, criminal history category

I is 70 to 87 months. The sentencing range for offense level 27, criminal history category

II is 78 to 96 months. The District Court asked Hidalgo if she understood that the she

could be sentenced more harshly than the bottom of both of the sentencing ranges and that

if she was so sentenced she nevertheless waived her rights to appellate and post-

conviction review. Hidalgo responded in the affirmative.

       The District Court imposed a 78 month term of imprisonment. Judgment of

sentence was entered on March 14, 2005. Hidalgo’s trial counsel did not file a notice of

appeal within 10 days after judgment of sentence was entered. On April 27, 2005,

Hidalgo sent a letter to the District Court inquiring as to whether trial counsel filed a

notice of appeal. The letter was docketed and treated as a notice of appeal. It was then

forwarded to this Court and was dismissed as untimely on June 14, 2005.

       On May 19, 2006, Hidalgo filed a motion pursuant to 28 U.S.C. § 2255 in District

Court. She claimed that her trial counsel was ineffective for failing to file a timely notice

of appeal. The District Court appointed new counsel to represent Hidalgo, held an

evidentiary hearing on her motion, and, after determining that the facts established during

the hearing did not conclusively contradict her assertion that she requested that a notice of

appeal be filed on her behalf, permitted her to file to notice of appeal to challenge her

sentence. On November 22, 2006, Hidalgo filed her notice of appeal. Therefore,



                                              3
Hidalgo’s appeal of the judgment of sentence entered by the District Court is presently

before this Court.

       Hidalgo argues that she was deprived of effective assistance of counsel by her trial

counsel’s failure to urge the District Court for a downward departure from criminal

history category II to category I. We first note that while generally this Court will not

reach the merits of an ineffective assistance of counsel claim on direct appeal, United

States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998), because the District Court held an

evidentiary hearing on this issue the record is sufficient to allow for review thereof.

Government of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir. 1984). Appellate

review is also proper since there is no need for an additional evidentiary hearing in any

collateral proceeding. Id.

       According to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), trial

counsel may be found ineffective only where his decisions were so deficient as to

prejudice the right to a fair trial. In Strickland, the Court held:

       First, the defendant must show that counsel's performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense.


Id. at 687, 688, 694, 104 S.Ct. 2052.

       Hidalgo cannot satisfy the first prong of the Strickland test. Trial counsel’s



                                               4
performance was not deficient. Hidalgo argues that trial counsel should have argued for

a downward departure from criminal history category II to category I. However, as

Hidalgo stated in her brief, the general rule is that in order to qualify for criminal history

category I an offender typically has not been convicted of a crime within the 10 years

immediately preceding the entry of sentence. See, U.S.S.G. § 4A1.3, comment (n.3).

Despite the fact that Hidalgo was not free of convictions within the 10 years prior to the

imposition of her sentence, she nevertheless argues that her convictions were for minor

offenses. She therefore concludes that trial counsel was ineffective for failing to request

a downward departure. Hidalgo’s argument does not withstand scrutiny under Strickland.

Trial counsel’s performance was not deficient because Hidalgo’s four prior convictions -

two within the 10 years immediately prior to her sentencing - establish that she is a

category II offender. Trial counsel’s asserted failure to urge the District Court to consider

a downward departure did in not fall outside an objective standard of reasonableness as

required by Strickland. Therefore, Hidalgo did not receive ineffective assistance of

counsel.

       Secondly, trial counsel’s performance was not deficient because Hidalgo’s plea

agreement precluded trial counsel from arguing for a downward departure. Her plea

agreement specifically states that there is no basis for an upward or downward departure

not set forth therein. In her plea agreement Hidalgo also waived the right to file any

appeal or collateral attack which challenged the District Court’s authority to sentence in


                                               5
accordance with the U.S. Sentencing Guidelines. Our review of the plea colloquy

demonstrates that the District Court complied with the mandates of Federal Rule of

Criminal Procedure 11 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). We

conclude that Hidalgo’s plea was knowing and voluntary and that trial counsel’s

performance was not deficient.

             Accordingly, we will affirm the judgment of sentence.




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