                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2937




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                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 03-2937




                  UNITED STATES OF AMERICA

                                v.

                       LAZARA ORDAZ,
                                  Appellant




         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
              (D.C. Criminal No. 98-cr-00587-1)
             District Judge: Hon. Anita B. Brody


           Submitted Under Third Circuit LAR 34.1(a)
                       October 4, 2004

  Before: SLOVITER, BECKER and STAPLETON, Circuit Judges

         (Filed         October 6, 2004                )




                    OPINION OF THE COURT
SLOVITER, Circuit Judge.

                                             I.

       Lazara Ordaz (“Lazara”), who was the leader of a narcotics distribution ring which

operated under the sobriquet “Ordaz Cocaine Organization,” or the “OCO,” pled guilty to

the twenty-two counts with which she was charged in a seventy-six count indictment

against eighteen defendants. The twenty-two counts against Lazara consisted of one

count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, twenty counts

of the use of various communications facilities in furtherance of this conspiracy, in

violation of 21 U.S.C. § 843(b), and one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). The plea agreement did not require or

contemplate Lazara’s cooperation with the United States or law enforcement, although

trial counsel arranged several debriefing sessions with law enforcement in hopes of

securing a downward departure under U.S.S.G. § 5K1.1. Lazara refused to participate.

       Thereafter, the District Court sentenced Lazara to a term of 420 months of

incarceration, five years of supervised release, a fine of $1,000, and a special assessment

of $2,200. After imposing sentence, the District Court informed Lazara that if she wished

to take an appeal, she needed to do so within ten days of the sentencing. She failed to

lodge a notice of appeal within the requisite time.

       On November 29, 2000, after expiration of the time in which Lazara should have

filed an appeal, she filed a pro se motion to extend the time for filing an appeal. The



                                             2
District Court denied that motion. With her direct appeal thus procedurally defaulted, on

October 15, 2001, Lazara filed, pursuant to 28 U.S.C. § 2255, a pro se motion to vacate,

set aside, or correct her sentence. In that motion, Lazara averred that trial counsel was

ineffective because, inter alia, he offered limited and insufficient advice respecting the

sentence that she would receive upon the entering of a guilty plea. Lazara thus

maintained that her guilty plea was not the product of a voluntary and intelligent choice.

Hill v. Lockhart, 474 U.S. 52 (1985); North Carolina v. Alford, 400 U.S. 25 (1970);

McMann v. Richardson, 397 U.S. 759 (1970); Boykin v. Alabama, 395 U.S. 238 (1969).

She further argued ineffectiveness based on trial counsel’s failure to file a timely notice

of appeal. Although Lazara filed the motion pro se, she subsequently obtained counsel.

       On June 26, 2003, the District Court, as required by Solis v. United States, 252

F.3d 289 (3d Cir. 2001), held an evidentiary hearing on Lazara’s 28 U.S.C. § 2255 motion

at which both Lazara and her trial counsel testified.

       The District Court found that trial counsel’s performance respecting the plea

process was not constitutionally deficient but that trial counsel was constitutionally

ineffective respecting his failure to pursue an appeal on Lazara’s behalf. Therefore, the

District Court granted Lazara’s motion on that score and, pursuant to the remedy required

by Solis v. United States, 252 F.3d 289 (3d Cir. 2001), vacated her sentence and

immediately resentenced Lazara to the same punishment that it had imposed previously.

       Thereafter, Lazara filed a direct appeal in this court, asserting that her plea was not



                                              3
voluntarily and intelligently entered because it was the product of incorrect advice by her

trial counsel. Specifically, Lazara maintains that, but for trial counsel’s failure to provide

her with correct information respecting potential sentences, she would have chosen to

proceed to jury trial.

                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Lazara

maintains that this court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

       The United States maintains that, in effect, this is an appeal of the District Court’s

resolution of Lazara’s collateral attack on her sentence under 28 U.S.C. § 2255 and that

because of the lack of a certificate of appealability, we lack jurisdiction. 28 U.S.C. §

2253(c)(1)(B); United States v. Cepero, 224 F.3d 256, 260-62 (3d Cir. 2000) (en banc).

       The United States’ position is contrary to the law of this Circuit. In Solis, as in

this case, counsel failed to take a direct appeal after the trial court imposed sentence. The

defendant filed a 28 U.S.C. § 2255 motion arguing, inter alia, that his counsel was

ineffective for failing to file a direct appeal as he requested. On appeal, we held that

when a defendant alleges that his or her lawyer failed to appeal the conviction, the

defendant is entitled to a hearing before the district court and if, on remand, the district

court determines that counsel was ineffective for failing to lodge a requested appeal, the

district court must vacate and then reinstate the sentence. In other words, in such a



                                               4
circumstance, the defendant “must be given the opportunity nunc pro tunc to brief his

direct appeal in full.” Solis, 252 F.3d at 295. See also In re Olabode, 325 F.3d 166, 172

(3d Cir. 2003), (stating, “The purpose of [the defendant’s] resentencing was to put him

back into the position that he would have been in had his attorney filed a notice of

appeal.”).

       Lazara’s prior 28 U.S.C. § 2255 motion was directed solely to the now-vacated

sentence. Therefore, when the District Court vacated the previous sentence, it necessarily

rendered the prior 28 U.S.C. § 2255 proceedings – proceedings solely directed towards

the prior sentence – a nullity. It follows that Lazara’s current appeal is a proper direct

appeal from the later-imposed sentence, a sentence which Lazara has never challenged by

way of direct appeal or collateral review. Therefore, contrary to the position of the

United States, this court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

                                             III.

       The court exercises plenary review over the merits of Lazara’s appeal. In Hill v.

Lockhart, 474 U.S. 52 (1985), the Supreme Court held that the two-part test announced in

Strickland v. Washington, 466 U.S. 668 (1984), respecting ineffective assistance of

counsel applies to the type of challenge to a plea agreement that Lazara raises here.

       This court has made clear that ineffective assistance of counsel claims, including

those proceeding under the Hill framework, are generally not entertained on a direct



                                              5
appeal. United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). Rather, as we

have repeatedly held, “the proper avenue for pursuing such claims is through a collateral

proceeding in which the factual basis for the claim may be developed.” United States v.

Theodoropoulos, 866 F.2d 587, 598 (3d Cir.1989) (citations omitted). We have

recognized a narrow exception: “Where the record is sufficient to allow determination of

ineffective assistance of counsel, an evidentiary hearing to develop the facts is not

needed.” Headley, 923 F.2d at 1083. In this case, a record sufficient to undertake the

Strickland analysis exists.

       In ascertaining the validity of a guilty plea, the court must determine whether the

plea represents a voluntary and intelligent choice among the alternative courses of action

open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). Under Hill, a

defendant who pleads guilty upon the advice of counsel may only attack the voluntary and

intelligent character of such a plea by showing that counsel’s performance fell beneath

the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). Hill, 474 U.S.

at 58. Under the two-prong test of Strickland, this court must inquire whether (1)

counsel’s representation fell below an “objective standard of reasonableness” and, if so,

(2) whether there is a “reasonable probability” that this ineffectiveness prejudiced the

outcome. Strickland, 466 U.S. at 688, 694.

       In applying the first prong of the Strickland test in the context of guilty pleas, a

court must determine whether “counsel’s advice ‘was within the range of competence



                                              6
demanded of attorneys in criminal cases.’” Hill, 474 U.S. at 56 (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970)). In applying the second prong of the Strickland

formulation in the context of guilty pleas, a court must focus on whether counsel’s

constitutionally deficient performance affected the outcome of the plea process. Thus, in

order to establish prejudice in the context of guilty pleas, a defendant must show that

there exists a reasonable probability that, but for counsel’s errors, she would not have

pleaded guilty and would instead have insisted on proceeding to trial. Hill, 474 U.S. at

59.

       Lazara concedes that, in contemplating the plea, her understanding, gleaned from

the information provided to her by her counsel, was that her punishment could be as little

as twenty years of incarceration and as much as life imprisonment. She avers that counsel

did not explain to her that, under the Sentencing Guidelines, the District Court was

required to impose a minimum sentence of 360 months incarceration. She maintains that

she believed that the minimum sentence was twenty years and that her trial counsel was

going to argue for the lowest possible sentence.

       Moreover, Lazara maintains that the plea agreement itself, as well as her colloquy

with the District Court, did nothing to enlighten her as to the actual minimum sentence.

As noted by Lazara, the plea agreement she signed stated that the applicable statutory

sentencing range was twenty years to life. M oreover, during the plea colloquy, see

generally Fed. R. Crim. P. 11(b), the District Court informed Lazara that the statutory



                                             7
mandatory minimum in her case was twenty years incarceration and the maximum

statutory penalty was life imprisonment. In sum, Lazara maintains that not until the

sentencing hearing itself did she understand that, under the Sentencing Guidelines, the

District Court, absent a downward departure, was required to impose a sentence of at least

360 months of incarceration.

       Lazara’s contentions are unavailing. At the hearing on her 28 U.S.C. § 2255

motion, when asked whether, prior to entering her plea of guilty, trial counsel ever

discussed the Sentencing Guidelines, Lazara stated: “I don’t think so.” (App. at 97).

This answer, itself equivocal on its face, is further belied by the testimony she gave, under

oath, at her plea hearing. The transcript from the plea hearing shows the following

exchange between Lazara and the District Court:

       Court:        Under the Sentencing Reform Act, the United States
                     Sentencing Commission issued guidelines for judges to
                     follow in determining sentences in criminal cases. Have you
                     discussed these with your lawyer–

       [Lazara]:     Yes, ma’am.

App. at 69. Indeed, at the later 28 U.S.C. § 2255 hearing, Lazara admitted that she

informed the District Court at the plea hearing that her trial counsel had in fact discussed

the Sentencing Guidelines with her. And, at the 28 U.S.C. § 2255 hearing, Lazara’s trial

counsel testified that prior to her entering of a guilty plea, he explained to her generally

how the Sentencing Guidelines worked and that, although he was unable at that time to

give her a precise sentencing range, he informed her that, based on the charged offenses

                                              8
and her criminal history, her sentencing range “was off the charts.” App. at 105. Cf.

United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992) (“We do not suggest that, to comply

with the Sixth Amendment, counsel must give each defendant anything approaching a

detailed exegesis of the myriad arguably relevant nuances of the Guidelines.”). This

evidence directly contradicts Lazara’s contention that, at the time she entered her guilty

plea, she believed that the minimum sentence that she was exposing herself to was twenty

years of incarceration. In addition, the record absolutely establishes that, at the time she

entered her plea, Lazara fully understood, through conversations with her lawyer, that by

pleading guilty, she was exposing herself to a potential life sentence.

       Moreover, Lazara’s contentions respecting the plea agreement and her Fed. R.

Crim. P. 11 hearing lack merit. First, as a matter of law, the district court has no

obligation, under Rule 11 or otherwise, to inform a defendant contemplating a guilty plea

of the precise minimum sentence that the Sentencing Guidelines will dictate. United

States v. Henry, 893 F.2d 46, 48-49 (3d Cir. 1990). Further, prior to accepting her plea,

the District Court, after explaining that the maximum statutory punishment available in

her case was life imprisonment, discussed generally with Lazara the Sentencing

Guidelines.

       Court:        [T]he sentencing guidelines[.] I will not be able to determine
                     the guideline range for your case until the presentence report
                     has been completed . . . do you understand that?

       [Lazara]:     Yes, ma’am.



                                              9
       Court:        Obviously, you and your lawyer will be allowed to review the
                     presentence report prior to sentencing. After it has been
                     determined what guideline applies in this case, I have the
                     authority in some circumstances to impose a sentence that is
                     more or less severe than that called for by the guidelines. . . .
                     I may impose a sentence up to the maximum permitted by
                     law, and you will not be permitted to withdraw your guilty
                     plea if I impose a more severe sentence than you expect or
                     anyone else recommends, do you understand that?

       [Lazara]:     Yes, ma’am.

App. at 69-70.

       Thus, the District Court told Lazara specifically that no one could know her

precise sentencing range until completion of the presentence report, that the maximum

penalty was life imprisonment, and that she could not later withdraw her plea merely

because she received a harsher sentence than she expected.1 In fact, the plea agreement

Lazara signed, although setting forth the applicable statutory sentencing range, expressly

stated that Lazara’s sentence would be calculated under the Sentencing Guidelines and

that her actual sentence would be determined through application of the Guidelines.

       We hold that on this record, Lazara has failed to carry her burden in showing that



   1
       Therefore, not only does the record not support Lazara’s contentions respecting the
inadequacy of the District Court’s colloquy, the record shows that even if trial counsel
had failed to discuss adequately the Sentencing Guidelines – a factual determination not
supported by this record – the District Court’s statements at the guilty plea hearing would
have likely remedied any such failure. Cf. United States v. Mustafa, 238 F.3d 485, 492
(3d Cir. 2001) (“[A]ny alleged misrepresentations that Mustafa's former counsel may
have made regarding sentencing calculations were dispelled when Mustafa was informed
in open court that there were no guarantees as to sentence, and that the court could
sentence him to the maximum.”).

                                             10
her counsel’s advice respecting her guilty plea and her possible sentence fell below the

range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 56;

Strickland, 466 U.S. at 688.2 To the contrary, the record shows that Lazara’s counsel

gave adequate advice respecting the consequences of Lazara’s contemplated guilty plea,

as well as the consequences and operation of the Guidelines. In addition, contrary to

Lazara’s contentions, nothing written in the plea agreement or stated by the District Court

alters this outcome. Simply put, Lazara has failed to show that her decision to plead

guilty was not a voluntary and intelligent choice.

                                            IV.

       For the reasons set forth, we will affirm the judgment of the District Court.

______________________




   2
       The finding that trial counsel’s representation met constitutional standards obviates
the need to apply the second Strickland prong, prejudice. Nonetheless, if the Court were
to undertake the prejudice analysis, such an inquiry would likewise not result in a finding
favorable to Lazara. Other than her conclusory and self-serving statements, Lazara has
not offered evidence that, had she fully understood her sentencing range under the
Guidelines, she would have proceeded to trial.

                                            11
