Petition for Writ of Certiorari — Freddie Galan, Petitioner v. United States
Supreme Court briefApr 18, 2022
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No.
In the Supreme Court of the United States
FREDDIE GALAN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT
On Petition for Writ of Certiorari
to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Derly Joel Uribe
Counsel of Record for Petitioner
Freddie Galan
Law Offices of Francisco J. Saldaña, Jr.
217 W. Village Blvd., Suite 3
Laredo, Texas 78041
Tel. (956) 726-1631
Fax (956) 726-4158
Texas State Bar No. 00794770
QUESTIONS PRESENTED FOR REVIEW
Petitioner pled guilty to conspiracy to possess with intent to distribute 500
grams or more of methamphetamine, and he received and is serving a twentyseven year sentence. The factual basis Mr. Galan admitted to does not establish
that he committed a conspiracy offense because it provides that the agreement
that is the basis of the charged conspiracy is between him and Jesus Mares, a
government informant. Mr. Galan plead guilty not knowing that reaching an
agreement with a government informant does not constitute a conspiracy offense
as a matter of law. Petitioner now seeks certiorari to review the following
questions:
Whether Mr. Galan’s guilty plea to facts which do not constitute a
conspiracy offense as a matter of law is an invalid and unintelligent guilty plea
which violates the Due Process Clause.
Whether the district court’s acceptance of Mr. Galan’s guilty plea to facts
which do not constitute a conspiracy offense as a matter of law is a fundamental
constitutional or structural error that requires automatic reversal.
Whether the Fifth Circuit Court of Appeals erred in not vacating Mr.
Galan’s guilty plea on the basis that: (1) the district court erred in accepting a
factual basis that does not establish that Mr. Galan committed a conspiracy
offense as a matter of law in violation of Rule 11; (2) his guilty plea was not
i
made on a voluntary or knowing basis; and (3) he received ineffective assistance
of counsel.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
U.S. CONSTITUTION, STATUTES AND RULES. . . . . . . . . . . . . . . . . . . . . vi
OTHER AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BASIS OF FEDERAL JURISDICTION IN THE
UNITED STATES DISTRICT COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASON FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. THE FIRST TWO QUESTIONS PRESENTED RAISE IMPORTANT QUESTIONS
OF FEDERAL LAW NOT YET RESOLVED BY THE SUPREME COURT. . . . . . . 3
B. THE FIRST TWO QUESTIONS PRESENTED HAVE RECURRING IMPORTANCE
TO THE ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM.. . . . . . . . 9
C. THE FIFTH CIRCUIT’S DECISION AFFIRMING THE DISTRICT COURT’S
ACCEPTANCE OF MR. GALAN’S GUILTY PLEA HAS SO FAR DEPARTED FROM
THE ACCEPTED AND USUAL COURSE OF PROCEEDINGS, OR SANCTIONED
SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF
THE COURT’S SUPERVISORY POWER.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
iii
TABLE OF CONTENTS- (Cont’d)
Page
APPENDIX A—United States v. Freddie Galan,
(5th Cir. 2022) WL 118959. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B—Order Denying Mr. Galan’s Petition for Rehearing,
Entered February 1, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3a
APPENDIX C—Mr. Galan’s Brief for Appellant filed in the
United States Court of Appeals for the Fifth Circuit. . . . . . . . . . . . . . . . . . . 4a
TABLE OF AUTHORITIES
Page
Cases
Arizona v. Fulminante,
499 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Blackledge v. Allison,
431 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Brady v. United States,
397 U.S. 742 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5
Bousley v. United States,
523 U.S. 614 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,5
Class v. United States,
138 S. Ct. 798 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,10
Commonwealth v. Hinds,
101 Mass. 209 (1869). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Gideon v. Wainwright,
372 U.S. 335 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iv
CASES- (Cont’d)
Page
Henderson v. Morgan,
426 U.S. 637 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
McKaskle v. Wiggins,
465 U.S. 168 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Neder v. United States,
527 U.S. 1 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Santobello v. New York,
404 U.S. 257 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Smith v. O’Grady,
312 U.S. 329 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sullivan v. Louisiana,
508 U.S. 275 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tumey v. Ohio,
273 U.S. 510 (1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Brown,
879 F. 3d 1048 (9 th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Corson,
579 F. 3d 804 (7 th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Delgado,
672 F. 3d 320 (5 th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,13
United States v. Dominguez-Benitez,
542 U.S. 747 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6
United States v. Escajeda,
8 F. 4th 423 (5th Cir. 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Galan,
2022, WL 118959 at *1 (5 th. Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . 1,11
v
CASES- (Cont’d)
Page
United States v. Garner,
915 F. 3d 167 (3 rd Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Jones,
969 F. 3d 192 (5 th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Leal,
921 F. 3d 951 (10 th Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Maltos,
985 F. 2d 743 (5 th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Pettigrew,
77 F. 3d 1500 (5 th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Rojas Alvarez,
451 F. 3d 320 (5 th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Vonn,
535 U.S. 55 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Wenxia Man,
891 F. 3d 1253 (11 th Cir 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Vasquez v. Hillery,
474 U.S. 254 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Waller v. Georgia,
467 U.S. 39 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. CONSTITUTION, STATUTES AND RULES
U.S. CONST. AMEND. V.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. CONST. AMEND. VI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
vi
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FED. R. CRIM. P. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i,5,6,9,10,11,14,15
SUP. CT. R. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SUP. CT. R. 13.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIES
U.S. Sentencing Comm’n, Sourcebook of
Federal Sentencing Statistics, Fig. 5 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pattern Crim. Jury Inst.
5th Cir. 2.16 (2019).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
vii
LIST OF PARTIES
The caption of this case names all parties to the proceeding in the court
whose judgment is sought to be reviewed.
OPINION BELOW
The opinion of the court of appeals is an unreported case and can be found
at 2022 WL 118959 (5th Cir. 2022). A copy of said opinion is also attached to this
petition as Appendix A. A copy of the order denying Mr. Galan’s petition for
rehearing en banc is also attached to this petition as Appendix B, and a copy of
Mr. Galan’s Brief of Appellant that was filed in the United States Court of
Appeals for the Fifth Circuit is also attached to this petition as Appendix C.
JURISDICTION
The judgment of the United States Court of Appeals for the Fifth Circuit
was entered on January 12, 2022. The United States Court of Appeals for the
Fifth Circuit denied Mr. Galan’s Petition for Rehearing by order filed on
February 1, 2022. Thus, this petition is filed within 90 days after February 1,
2022, the date of the denial of rehearing. See SUP. CT. R. 13.3. The Court has
jurisdiction to grant certiorari under 28 U.S.C. § 1254(1).
1
CONSTITUTIONAL PROVISIONS INVOLVED
1.
The Fifth Amendment provides in pertinent part that:
No person shall be ... deprived of life, liberty, or property,
without due process of law.
U.S. CONST. AMEND. V.
2.
The Sixth Amendment provides in pertinent part that:
In all criminal proceedings, the accused shall ... have the
Assistance of Counsel for his defense.
U.S. CONST. AMEND. VI.
STATEMENT OF THE CASE
Mr. Galan pled guilty to a drug conspiracy offense based on facts that do not
establish that he committed a conspiracy offense as a matter of law. The factual
basis provides that the agreement that is the basis of the charged conspiracy is
between Mr. Galan and Jesus Mares, a government informant–an agreement
that does not and cannot constitute a conspiracy offense as a matter of law. Mr.
Galan’s trial counsel rendered ineffective assistance of counsel because he
allowed him to plead guilty to the crime of conspiracy based on facts which do
not establish criminal liability. Mr. Galan plead guilty not knowing that his
admitted conduct does not establish that he committed a conspiracy offense as
a matter of law. Mr. Galan received and is serving a twenty-seven year sentence
because of his ignorant and unknowing guilty plea.
2
BASIS OF FEDERAL JURISDICTION
IN THE UNITED STATES DISTRICT COURT
This case was originally brought as a federal criminal prosecution under 21
U.S.C. § 846. The district court therefore has jurisdiction pursuant to 18 U.S.C.
§ 3231.
REASONS FOR GRANTING THE WRIT
A. THE FIRST TWO QUESTIONS PRESENTED RAISE IMPORTANT QUESTIONS OF
FEDERAL LAW NOT YET RESOLVED BY THE SUPREME COURT.
To be constitutionally valid, a guilty plea needs to be made on a “voluntary”
and “intelligent” basis. Bousley v. United States, 523 U.S. 614, 618 (1998); Brady
v. United States, 397 U.S. 742, 748 (1970). When a defendant does not know
what he is pleading to, there is no “foundation for entering a judgment” through
the defendant’s purported admission to the “act charged.” Brady v. United
States, 397 U.S. 742, 748 (1970). The factual basis presented by the government
at the plea hearing that was exclusively relied upon by the district court to
legally determine Mr. Galan’s guilt and admitted to be true by Mr. Galan, does
not establish that Mr. Galan committed a conspiracy offense. The reason it does
not do so is because the factual basis provides that the agreement that is the
basis of the charged conspiracy is between him and Jesus Mares, a government
informant. ROA.98-102; see also United States v. Delgado, 672 F.3d 320, 341 (5th
Cir. 2012) (“An agreement with a government agent cannot be the basis for a
3
conspiracy conviction because a government agent does not share the accused’s
criminal purpose.”).1
Since the Government read the factual basis into the record, the district
court accepted it, and Mr. Galan’s trial counsel did not object to it, it is evident
no one knew that an agreement between a defendant and a government
informant is not and cannot constitute a conspiracy offense as a matter of law.
See Bousley v. United States, 523 U.S. 614, 619 (1998). (“[P]etitioner contends
that the record reveals that neither he, nor his counsel, nor the court correctly
understood the essential elements of the crime with which he was charged.
Were this contention proved, petitioner’s plea would be ... constitutionally
invalid”). Since Mr. Galan clearly plead guilty to facts that do not constitute that
he actually committed a conspiracy offense, Mr. Galan’s guilty plea is
constitutionally invalid.
In Bradshaw, Stumpf’s attorneys represented at the plea hearing that the
elements of the charge were explained to him, which Stumpf confirmed on the
record as being correct. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). The
Court held that based on those facts, Stumpf’s guilty plea was constitutionally
1. See also United States v. Garner, 915 F.3d 167, 170 (3d Cir. 2019);
United States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009); United States v.
Brown, 879 F.3d 1048 (9th Cir. 2018); United States v. Leal, 921 F.3d 951, 959
(10th Cir. 2019); and United States v. Wenxia Man, 891 F.3d 1253, 1265 (11th Cir.
2018).
4
valid. Id. Contrary to Bradshaw, the record in the case at bar is clear that Mr.
Galan ignorantly and unintelligently plead guilty to facts that do not establish
a conspiracy offense as a matter of law. See Henderson v. Morgan, 426 U.S. 637,
647 (1976) (“Since [defendant] did not receive adequate notice of the offense to
which he pleaded guilty, his plea was involuntary and the judgment of
conviction was entered without due process of law.”).
With respect to determining the constitutionality of a guilty plea, the case
at bar presents two vitally important questions of federal law not yet resolved
by this Court: (1) whether Mr. Galan’s guilty plea to facts which do not
constitute a conspiracy offense as a matter of law is an invalid and unintelligent
guilty plea; and (2) whether Mr. Galan’s guilty plea to facts which do not
constitute a conspiracy offense as a matter of law is a fundamental
constitutional or structural error that requires automatic reversal. Unlike other
Supreme Court cases involving guilty pleas and procedural violations of Rule
11,2 the case at bar alleges an error that goes beyond a mere failure to comply
with a Rule 11 technicality; the case at bar alleges an error that goes to the core
of the Due Process Clause’s requirement that a guilty plea be made on an
intelligent basis. See Bousley v. U.S., 523 U.S. 614, 618 (1998), quoting Smith
2.
See United States v. Dominguez-Benitez, 542 U.S. 74, 78 (2004) (The district
court “failed to mention that Dominguez could not withdraw his plea”); United States
v. Vonn, 535 U.S. 55, 60 (2002) (The district court failed to advise defendant he had the
right to the assistance of counsel).
5
v. O’Grady, 312 U.S. 329, 334 (1941) (“We have long held that a plea does not
qualify as intelligent unless a criminal defendant first receives ‘real notice of the
true nature of the charge against him, the first and most universally recognized
requirement of due process’”); see also Class v. United States, 138 S.Ct. 798, 804
(2018) (“[I]f the facts alleged and admitted do not constitute a crime against the
laws ... the defendant is entitled to be discharged.” (quoting Commonwealth v.
Hinds, 101 Mass. 209, 210 (1869).).
In light of the fact that the Supreme Court raised the notion of structural
error in the context of a guilty plea case, without Dominguez-Benitez even
arguing that his alleged Rule 11 error constitutes a structural error that merits
automatic reversal, the Court in said case appears to be inviting a guilty plea
case such as the case at bar that alleges a substantive due process violation and
not just a technical Rule 11 violation:
It is only for certain structural errors undermining the fairness of a
criminal proceeding as a whole that even preserved error requires
reversal without regard to the mistake’s effect on the proceeding. See
Arizona v. Fulminante, 499 U.S. 279, 309-310 ... (1991) (giving
examples). Dominguez does not argue that either Rule 11 error
generally or the Rule 11 error here is structural in this sense.
Dominguez-Benitez, 542 U.S. at 81. Accordingly, the Court should grant
certiorari to address the two questions raised herein, important questions of
federal law not yet resolved by this Court, and a question the Court appears
poised to want to address.
6
There are certain types of constitutional or structural errors that are “so
intrinsically harmful as to require automatic reversal (i.e. ‘affect substantial
rights’) without regard to their effect on the outcome.” Neder v. United States,
527 U.S. 1, 7 (1999). The following are errors that the Court has determined to
be structural, requiring automatic reversal: a complete denial of counsel as
recognized by Gideon v. Wainwright, 372 U.S. 335 (1963); a biased judge as
recognized by Tumey v. Ohio, 273 U.S. 510 (1927); racial discrimination in the
selection of a grand jury as recognized by Vasquez v. Hillery, 474 U.S. 254
(1986); denial of self-representation at trial as recognized by McKaskle v.
Wiggins, 465 U.S. 168 (1984); denial of public trial as recognized Waller v.
Georgia, 467 U.S. 39 (1984); and a defective reasonable-doubt instruction as
recognized by Sullivan v. Louisiana, 508 U.S. 275 (1993).
Cases that contain a “structural” error have been described by the Supreme
Court
to contain a ‘defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.’ Such
errors ‘infect the entire trial process, ... and ‘necessarily render a
criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence. Put another way, these errors deprive
defendants of ‘basic protections’ without which ‘a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence ... and no criminal punishment may be regarded as
fundamentally fair.’
Neder v. United States, 527 U.S. at 8-9 (citations omitted). Since the record
shows that Mr. Galan pled guilty to facts that actually do not constitute a
7
conspiracy offense as a matter of law, Mr. Galan was denied the fundamental
purpose of the assistance of counsel–the knowledge whether a defendant’s
admitted conduct violates the criminal statute he was charged with violating.
Such being the case, Mr. Galan was clearly denied the most basic and
fundamental protections required by the right to counsel and the Due Process
Clause, and the process that meted out his guilty plea can accurately be
characterized as fundamentally unfair and unreliable as a vehicle for
determining whether his admitted conduct actually violates the criminal statute
he was charged with violating.
The fact that the factual basis cannot be and was not exclusively relied upon
by the Fifth Circuit to determine the existence of a factual basis for Mr. Galan’s
guilty plea reinforces his contention that the process that accepted and
determined his guilt is unfair and unreliable. Furthermore, the fact that Mr.
Galan is serving a twenty-seven year sentence for engaging in conduct that
actually does not constitute criminal conduct further reinforces his contention
that the process that accepted and determined his guilt is unfair and unreliable.
Accordingly, the district court’s acceptance of Mr. Galan’s invalid guilty plea
which categorically does not establish a conspiracy offense as a matter of law is
a fundamental or structural constitutional error that requires automatic
reversal of his guilty plea.
8
B. THE FIRST TWO QUESTIONS PRESENTED HAVE RECURRING IMPORTANCE TO
THE ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM.
It cannot be refuted that the vast majority of federal criminal cases are
resolved and disposed of by guilty pleas. Indeed, in fiscal year 2020, 97.8% of all
federal criminal cases were resolved by guilty pleas, a percentage that is
consistently yielded on an annual basis. See U.S. Sentencing Comm’n,
Sourcebook of Federal Sentencing Statistics, Fig. 5 (2020). This Court has
expressed the importance, necessity, and prevalence of guilty pleas and plea
bargaining. Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“The guilty plea and
the often concomitant plea bargain are important components of this country’s
criminal justice system.”); see also Santobello v. New York, 404 U.S. 257, 260
(1970) (plea bargaining is “an essential component of the administration of
justice”). As the Advisory Committee on Criminal Rules recognized in 1966,
since the “great majority of all defendants against whom indictments or
informations are filed in federal courts plead guilty,” the “fairness and adequacy
of the procedures on acceptance of pleas of guilty are of vital importance in
according equal justice to all in the federal courts.” Fed. R. Crim. P. 11 advisory
committee’s note to 1966 amendment. Rule 11 was therefore amended to require
courts to determine that each plea is “made voluntarily with understanding of
he nature of the charge.” Id.
9
In our system of guilty pleas, the determination that the defendant
understands that his admitted conduct violates the criminal statute he is
accused of violating and enters a plea voluntarily is all that stands between the
defendant and the extensive loss of rights and benefits that follows a guilty plea.
When a defendant pleads guilty, he forgoes not only a fair trial but its
accompanying constitutional guarantees, including the right against selfincrimination and the right to confront his accusers. See Class, 138 S.Ct. at 805.
The defendant also surrenders the right to testify and present evidence in his
defense, the right to compel the attendance of witnesses, and the right to be
represented by counsel at each stage of the trial proceedings. See Fed. R. Crim.
P. 11(b)(1)(E)-(F). All this in addition to relinquishing the right to liberty. This
Court’s consideration of the two questions presented undoubtedly would bring
greater clarity, certainty and guidance to the rules regarding federal courts’
acceptance of guilty pleas, a process that is exercised by the federal courts
probably more than any other. Therefore, this Court’s review of these questions
is warranted because it will help resolve vitally important questions of federal
law not yet resolved by the Supreme Court.
10
C. THE FIFTH CIRCUIT’S DECISION AFFIRMING THE DISTRICT COURT’S
ACCEPTANCE OF MR. GALAN’S GUILTY PLEA HAS SO FAR DEPARTED FROM
THE ACCEPTED AND USUAL COURSE OF PROCEEDINGS, OR SANCTIONED
SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF
THE COURT’S SUPERVISORY POWER.
The third question presented is whether the Fifth Circuit Court of Appeals
erred in not vacating Mr. Galan’s guilty plea on the basis that: (1) the district
court erred in accepting a factual basis that does not establish that Mr. Galan
committed a conspiracy offense as a matter of law in violation of Rule 11; (2) his
guilty plea was not made on a voluntary or knowing basis; and (3) he received
ineffective assistance of counsel. The Court should grant certiorari to address
these questions because the decision of the Fifth Circuit Court of Appeals “has
so far departed from the accepted and usual course of judicial proceedings, or
sanctioned such a departure by a lower court as to call for an exercise of the
Court’s supervisory powers.” SUP. CT. R. 10(a).
Because the factual basis categorically cannot support the guilty plea, the
Fifth Circuit was forced to rely on other sources to attempt to find a sufficient
factual basis. The Fifth Circuit held in a conclusory manner that a sufficient
factual basis exists because Mr. Galan’s ”plea colloquy and the PSR establish
that the conspiracy at issue predated the cooperation of co-conspirator Jesus
Mares with the Government.” United States v. Galan 2022 WL 118959 at *1 (5th
Cir. 2022). This finding has no support in the record. It is noteworthy that the
Panel’s opinion does not provide a single reference to any part of the record
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including a PSR paragraph to support this or any other finding. The plea
colloquy actually establishes very clearly that the agreement purporting to be
a conspiracy between Mr. Galan and Mares, a government informant “developed
at 9:30 p.m. when the first recorded phone call was made” by Mares as a
government informant to Mr. Galan. ROA.117.
The Fifth Circuit further states that “[t]he PSR likewise describes
communications, contained on Galan’s cell phone, between Galan and an
unidentified individual with a Mexico-based phone number discussing an
apparent narcotics operation.” Id. Setting aside that this alleged communication
was not part of the factual basis nor admitted to be true by Mr. Galan as part
of his guilty plea, it is not a reasonable inference because the PSR: (1) does not
describe “an apparent narcotics operation; and (2) even if it did, there is nothing
in the PSR or elsewhere which states that the individual with a Mexico-based
phone number and his apparent narcotics scouting operation had any connection
to or association with the conspiracy Mr. Galan was charged with committing.
This factually baseless assertion is improper assumption or speculation because
Mr. Galan is perceived to be associating with a bad actor or was “in a climate of
activity that reeks of something foul.” See U.S. v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992). (Mere presence at a crime scene or close association with
conspirators, standing alone, will not support an inference of participation in a
drug conspiracy.). The law further provides that “[t]he government must also
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prove ‘the conspiracy charged’ rather than ‘some other conspiracy. If ... a
defendant was not a member of the conspiracy charged in the indictment, then
... that defendant [is] not guilty, even though that defendant may have been a
member of some other conspiracy.’” United States v. Jones, 969 F.3d 192, 196 (5th
Cir. 2020), quoting Pattern Crim. Jury Inst. 5th Cir. 2.16 (2019).
Since the Fifth Circuit’s inferences as stated above are factually
unsupported and unreasonable to support the guilty plea, a large quantity of
drugs alone is also insufficient proof of a conspiracy. See United States v.
Delgado, 672 F.3d at 334. (“[P]ossession of a large quantity of drugs is not, by
itself, sufficient to support a conspiracy conviction.”). Furthermore, the case
cited by the Fifth Circuit in support of its holding that a large amount of drugs
is sufficient to support a guilty plea actually does not provide any legal support
to its holding. United States v. Escajeda, 8 F.4th 423 (5th Cir. 2021) does not hold
that a large quantity of drugs by itself is sufficient evidence to support a
conspiracy conviction.
Escajeda actually holds that a large quantity of drugs together with a
sizable amount of cash and a gun is sufficient evidence to support a conspiracy
conviction. Id. at 427. In fact, Escajeda explicitly states that it is not deciding
whether a large quantity of drugs is alone sufficient to support a conspiracy
conviction. See id. n. 1. Since Escajeda does not provide any legal support for the
panel’s conclusion that the large amount drugs is alone sufficient proof of a
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conspiracy, and the other inferences the panel made are unreasonable and
factually unsupported, the panel is essentially speculating and piling
unreasonable inferences over and upon each other in order to arrive at its
erroneous holding that a sufficient factual basis exists to support Mr. Galan’s
guilty plea. See United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006)
(quoting United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996)).(A guilty
conspiracy “verdict may not rest on mere suspicion, speculation, or conjecture,
or an overly attenuated piling of inference on inference.”).
Since Mr. Galan’s challenges to the voluntariness of his plea and the
effectiveness of his trial counsel are not actually premised upon meritless
factual-basis contentions for the reasons stated supra, the panel also erred in
dismissing Mr. Galan’s constitutional challenges to his guilty plea. This petition
should be granted so Mr. Galan’s constitutional arguments can be sufficiently
considered independent of the Rule 11 procedural violation argument–that his
guilty plea was made on an unintelligent and involuntary basis in violation of
the Fifth Amendment’s Due Process Clause and in violation of the Sixth
Amendment because he received ineffective assistance of counsel–which are
both reviewed under the de novo standard of review. See Appellant’s Brief, p. 67, 14, 15. For these reasons, as well as Mr. Galan is serving a twenty-seven (27)
year sentence, this case presents questions of exceptional importance that
should be decided by the Supreme Court.
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The Court should grant certiorari because the Fifth Circuit, by making
clearly erroneous technical and immaterial findings that served to avoid
addressing Mr. Galan’s substantive arguments that his unknowing and
involuntary guilty plea be invalidated, has so far departed from the accepted
and usual course of judicial proceedings in deciding important federal questions
as to call for an exercise of this Court’s supervisory power. Mr. Galan should
have an opportunity for a reviewing court to substantively address his
arguments for his invalid guilty plea to be vacated on the basis that the district
court erred, in violation of Rule 11, in accepting a factual basis that does not
establish a conspiracy offense as a matter of law, and in doing so also violated
Mr. Galan’s right to due process of law. Furthermore, the district court accepted
Mr. Galan’s guilty plea in violation of his Sixth Amendment right to receive
effective assistance of counsel.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
s/ Derly Joel Uribe
DERLY JOEL URIBE
Attorney at Law
Law Offices of Francisco J. Saldaña, Jr.
217 W. Village Blvd., Suite 3
Laredo, Texas 78041
(956) 726-1631
(956) 726-4158 - Fax
DATED: April 18, 2022.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.