                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1378




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                                              NOT PRECEDENTIAL

      THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT



               Nos. 01-1378 and 01-1501



            UNITED STATES OF AMERICA

                          vs.

                 JUAN ALMODOVAR

                           Appellant No. 01-1378

                     ___________

            UNITED STATES OF AMERICA

                           Appellant No. 01-1501

                          vs.

                 JUAN ALMODOVAR

                     ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

              (D.C. Criminal No. 93-cr-00001-1)
    District Judge: The Honorable Mary A. McLaughlin

                     ___________

       Submitted Under Third Circuit LAR 34.1(a)
                   March 22, 2002
              BEFORE: NYGAARD, ROTH, and AMBRO, Circuit Judges.

                                   (Filed: July 16, 2002)
                                       ___________

                                OPINION OF THE COURT
                                     ___________

NYGAARD, Circuit Judge.

              Appellant, Juan Almodovar, pleaded guilty to possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the use of a firearm during

a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He was sentenced to

210 months imprisonment, five years supervised release, and a special assessment of

$100.00. We affirmed his sentence in United States v. Almodovar, 100 F.3d 948 (3d Cir.

1996).

              Almodovar then filed a motion to vacate, set aside or correct his sentence

pursuant to 28 U.S.C. § 2255. He asserted three claims: first, that an impermissible

sentencing disparity exists between himself and co-defendants sentenced by another

judge; second, that there was an error in imposing a two level enhancement for

obstruction of justice; and third, that there was insufficient evidence to establish that the

controlled substance seized was “crack” cocaine as defined by the Federal Sentencing

Guidelines. The District Court later allowed Almodovar to amend his petition to include

a claim that he had been deprived of due process at sentencing by the Government’s

failure to file a motion for a downward departure pursuant to Section 5K1 of the


                                              2
Sentencing Guidelines. The new claim, premised on our intervening decision in United

States v. Isaac, 141 F.3d 477 (3d Cir. 1998), asserted that the Government acted in bad

faith by declining to file this downward departure motion. The District Court granted the

motion in part and denied the motion in part. Specifically, the District Court agreed that

the Government’s refusal to file a downward sentencing departure motion based on the

Appellant’s substantial cooperation amounted to bad faith, warranting specific

performance of the plea agreement. However, the District Court disagreed with

Almodovar, holding that the disparity between his sentence and his co-conspirators was

not a proper basis for a downward sentencing departure. The matter was then re-assigned

to the Hon. Mary A. McLaughlin for re-sentencing. Judge McLaughlin ordered the

Government to file a motion for a downward sentencing departure on the Appellant’s

behalf for substantial assistance pursuant to U.S.S.G. § 5K1.1. The Government filed

such a motion and Judge McLaughlin re-sentenced the Appellant.

              Almodovar filed a notice of appeal, challenging this new sentence and we

appointed William T. Cannon, Esq. to assist with the appeal. Attorney Cannon filed a

brief in accordance with Anders v. California, 386 U.S. 738 (1968), raising a single issue:

did the government violate its guilty plea agreement with the defendant by filing a

downward departure motion at re-sentencing and then stating at the sentencing hearing

that it opposed any sentence below the defendant’s original sentence? Counsel also




                                             3
stated his view that there are no meritorious issues for appeal. Almodovar was informed

of his right to file a pro se supplemental brief but has failed to do so.

              The Government filed a cross-appeal, arguing that Almodovar’s amended

petition should have been dismissed as an improper successive petition under the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), that the amended

petition was time barred by the AEDPA, that the amended petition was procedurally

barred in light of the direct appeal and thus the Isaac issue was not properly before the

District Court, and finally that the District Court’s finding of bad faith was not supported

by the record. We start our analysis with the appeal filed by Almodovar.

              Because Almodovar entered a guilty plea, he is limited on appeal to

challenging the District Court’s jurisdiction to accept the plea, to claim that the plea itself

is invalid, or to claim that the sentence imposed on him was illegal. See Tollet v.

Henderson, 411 U.S. 258 (1973). That challenge would fail because the record shows

that Almodovar’s guilty plea was knowing and voluntary within the meaning of Boykin v.

Alabama, 395 U.S. 238 (1969), and that the requirements of Fed. R. Crim. P. 11 were

satisfied in this case. Therefore, the guilty plea presents no nonfrivolous issues for

appeal.

              Moreover, Almodovar was sentenced with the guideline range based on the

nature of the offenses and his prior criminal record or lack thereof. As such, there is no




                                               4
legitimate basis under 18 U.S.C. § 3742 to challenge this sentence. Almodovar’s claim

that his sentence is illegal is without merit and we will affirm.

              On cross-appeal the Government first argues that Almodovar’s amended

motion to vacate was an impermissible successive petition under the AEDPA. We

disagree. Almodovar had good cause to amend his motion–our intervening decision in

United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). Fed. R. Civ. P. 15(a) clearly states

that leave to amend a pleading shall be freely given when justice so requires. Because of

the intervening change in law between the two petitions, we affirm Judge Ludwig’s grant

of the Motion to Amend.

              Next, the Government contends that Almodovar’s amended motion was

time barred by the AEDPA. 28 U.S.C. § 2255 provides that habeas petitions must be

filed within one year from the Supreme Court’s denial of certiorari. The Supreme Court

denied Almodovar’s petition for certiorari on February 18, 1997, and his amended habeas

petition was not filed until May 28, 1999–more than one year later. However, in Miller v.

New Jersey State Department of Corrections, 145 F.3d 616 (3d Cir. 1998), we held that

the AEDPA limitations periods are subject to equitable tolling. We wrote that equitable

tolling would generally be proper when “the petitioner has in some extraordinary way. .

.been prevented from asserting his or her rights.” Id. at 618 (internal citations omitted).

Almodovar’s initial habeas petition was filed on February 11, 1998, our decision in Isaac

was filed on April 10, 1998. Almodovar was clearly prevented from asserting his Isaac



                                              5
claim before that decision was filed, thus equitably tolling the AEDPA limitations period

was appropriate and we will affirm.

              Finally, the Government argues that Almodovar’s amended petition was

procedurally barred in light of the direct appeal, or that, in the alternative, the District

Court’s finding of bad faith by the government was not supported by the record. First,

the amended petition was not procedurally barred because of the intervening decision in

Isaac. Second, the District Court made a number of specific factual findings predicated

upon testimony received during evidentiary hearings held before him. We agree that

these conclusions support a finding of bad faith and affirm the District Court’s order to

the Government to file a motion for downward departure on Almodovar’s behalf.

                                         Conclusion

              In sum and for the aforementioned reasons, we will affirm the judgment of

the District Court.

_________________________


TO THE CLERK:

              Please file the foregoing opinion.




                                                  /s/ Richard L. Nygaard
                                               Circuit Judge




                                               6
      THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                     ___________

               Nos. 01-1378 and 01-1501
                     ___________


            UNITED STATES OF AMERICA

                          vs.

                 JUAN ALMODOVAR

                           Appellant No. 01-1378

                     ___________

            UNITED STATES OF AMERICA

                           Appellant No. 01-1501

                          vs.

                 JUAN ALMODOVAR

                     ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

              (D.C. Criminal No. 93-cr-00001-1)
    District Judge: The Honorable Mary A. McLaughlin

                     ___________

       Submitted Under Third Circuit LAR 34.1(a)
                   March 22, 2002

 BEFORE: NYGAARD, ROTH, and AMBRO, Circuit Judges.
                                     ___________

                                     JUDGMENT
                                     ___________




             This cause came to be considered on the record from the United States

District Court for the Eastern District of Pennsylvania and was submitted pursuant to

Third Circuit LAR 34.1(a) on March 22, 2002.

             On consideration whereof, it is now here ORDERED AND ADJUDGED by

this Court that the judgment entered on February 9, 2001, be, and the same are hereby

affirmed.

             All of the above in accordance with the opinion of this Court.


                                            ATTEST:



                                            _________________________________
                                            Acting Clerk

Dated: 16 July 2002




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