Petition for Writ of Certiorari — Inafuku v. United States

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IN THE Be

SUPREME COURT

OF THE UNITED STATES

October Term, 199]

HOWARD INAFUKU,

Petitioner,

vs.

THE UNITED STATE OF

AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHERMAN M. ELLISON, ESQ.

14900 Magnolia Boulevard

Post Office Box 56656

Sherman Oaks, California 91413

(818) 994-8888

Attorney for Petitioner

HOWARD INAFUKU

MA,

Lorraine Mitchell Legal Briefs

732 E. WASHINGTON BOULEVARD

LOS ANGELES, CALIFORNIA 90021 -3088

(213) 747-5631 © FAX: (213) 747-5843

CONTENTS REPRODUCED FROM FURNISHED PRETYPED COPY

ISSUES PRESENTED

Did the district court err by

imposing a 10-year mandatory

minimum sentence in Count VI of

the indictment, pursuant to 21

¥.8.¢€: Sec. 841(b) (1) (viii),

when the methamphetamine

transactions necessary to

support such a sentence occurred

prior to the effective date of

the statute?

Did the district court err in

denying INAFUKU's pre-sentence

motion to withdraw his guilty

plea, when INAFUKU entered the

guilty plea because of his

counsel's and the - district

court's misadvice about critical

sentencing consequences?

F’

)

ge ae

OF CO NTS

QUESTIONS PRESENTED FOR

PVE EWe cc cc ces cece ccccccccccces

TABLE OF

MUTHORITIES . ccc csccscccccccccces

OFFICIAL AND UNOFFICIAL REPORTS OF

PRRs ocr c ecw cree ccc cvccevces

STATEMENT OF

So (sa

STATEMENT OF THE

PEE CCSGP SSS oe ceeseeseccceces

ARGUMENT... 2... ccccece Pane erereces

I. THE IMPOSITION OF THE

10-YEAR MANDATORY

MINIMUM SENTENCE ON

NT_V Ss O

Sone Sy Vii

W Vv OF

THE EX POST FACTO

CLAUSE OF THE UNITED

STATES

ON rere

II. THE DISTRICT COURT

ERRED BY DENYING

'S MO TO

W W Y

PLEA BECAUSE OF

MISADVICE ABOUT

CRITICAL SENTENCING

CONSEQUENCES...........

CONCLUSION... -eeeee TEETUEEEEE ASE

APPENDIX

PROOF OF

SERVICE... cccccvcces cece

TABLE OF AUTHORITIES

CASES

Boykin v.

Alabama

’

395 U.S. 238

(1969) ;

Brady v. United

States

‘

397 U.S. 742

(1970) °

Bunker v. Wise,

550 F.2d 1155

(9th Cir.

1977) .

Calder v. Bull,

arte

Tobar

3 Dall. 386

(1798)

Vv.

806 F.2d 1373

(9th Cir.

1986) . ;

565 F.2d 1321

‘Sth ¢ir.

1978)

32,

19,

48,

amm Vv

United States,

528 F.2d 15

(4th Cir.

1975) .

Iaea v. Sunn,

800 F.2d 861

(9th Cir.

1986) . °

Iaea v. Sunn,

Civ. No.

83-1372 (D.

Hawaii Dec.

23, 1986) .

Kadwell v.

United States,

315 F.2d 667

(9th Cir.

1963) .

Kennedy v.

Maggio,

725 F.2d 269

(Sth Cir.

1984) . .

chev Vv.

United States,

274 U.S. 220

(1927) ‘

Marks v. United

States,

430 U.S. 188

(1977) .

McMann v.

Richardson,

397 U.S. 759

(1970) ;

Miller v.

Florida,

482 U.S. 423

(1987) °

O'Tuel v.

Osborne,

706 F.2d 498

(4th Cir.

1983) . »

Strader v.,

Garrison,

611 F.2d 61

(4th Cir.

1979) . ;,

Ternullo,

510 F.2d 844

(26 Cir.

1975)

United States ex

rel. Leeson v.

Damon,

496 F.2d 718

(36 Cie.),

Lat

419 U.S. 954

(1974)

iii

22,

39,

SV.

‘

569 F.2d 1200

(2d Cir.

1978) . :

United States v.

Calabrese,

825 F.2d 1342

(9th Cir.

1987) . ;

ates v.

Colunga,

786 F.2d 659

(5th Cir.

1986), cert.

denied, 484

U.S. 857

(1987) ;

United States v.

Crusco,

536 F.2d 21

(3d Cir.

1976) .

United States v.

Davis,

212 F.2d 264

(7th Cir.

1954) . ,

Uni es Vv.

Del Prete,

567 F.2d 928

(9th Cir.

1978) .

26,

47,

United States v.

Del Valle-Rojas,

463 F.2d 228

(9th Cir.

1972) .

United States v.

Erlenborn,

483 F.2d 165

(9th Cir.

1973) . ‘

United States v.

Fairhurst,

388 F.2d 825

(3d Cir.),

cert. denied,

392 U.S. 912

(1968) :

United States v.

Gibbs,

813 F.2d 596

(3d Cir.),

cert denied,

484 U.S. 822

(1987) ;

United States v.

Harris,

534 F.2d 141

(9th Cir.

1976) . ,

United States v.

Herrold,

635 F.2d 213

(3d Cir.

1980) .

28,

United States v.

Jaramillo-Suarez,

857 F.2d 1368

(9th Cir.

1988) .

United States v.

Kay,

537 F.2d 1077

(9th Cir.

1976) . ; ;

United States v.

Morgan,

567 F.2d 479

(o.¢. Cir.

1977) .

United States v.

Navarro-Flores,

628 F.2d 1178

(9th Cir.

1980) . :

United States v.

Pinkerton,

328 U.S. 640

(1964)

United States v.

Pressley,

602 F.2d 709

(Sth Cir.

1979)

United States v.

Restrepo,

903 F.2d 648

(9th Cir.

1990)

29,

United States v.

Savage,

561 F.2d 554

(4th Cir.

as a

United States v.

Shapiro,

16 F.R.D. 499

(E.D. Wis.),

appeal

dismissed,

222 F.2d 836

(7th Cir.

1955) .

United States v.

Sharon,

812 F.2d 1233

(9th Cir.

1987) . .

United States v.

Tammaro,

93 F.R.D. 826

(N.D. Ga.

1982)...

United States v.

Thomas,

415 F.2d 1216

(9th Cir.

1986)

United States v.

Webster,

468 F.2d 769

(9th Cir.

1972), cert.

denied, 410

U.S. 934

(1973)

United States v.

Wolak

’

510 F.2d 164

(6th Cir.

1975)

Weaver v.

Grahan,

450 U.S. 24

(1981)

STATUTES

ai U.S.C. 36C:

841(b) (1) (viii).

21 U.S.C. § 846

26 U.S.C. § 7203.

28 U.S.C. §

1257(3)

Federal Rule of

Criminal

Procedure 32

(d)

Hawaii Code of

Professional

Responsibility,

Canon 7 °

Hawaii Code of

Professional

Responsibility,

viii

Disciplinary

Rule

6-101(A)(1)(2) . ; 37

MISCELLANEOUS

Comment, Federal

criminal]

Procedure and

Wi awa f

Guilty Pleas,

33 Ge Geeks be

Rev. 730, 736

(1955) . . : 55

Note,

- ce

Wit w f

Guilty Pleas

in Federal

Courts, 40

BekeUs. be

Rev. 759, 762

(1965) : : ; 53,

Note, The

Withdrawal of

h a of

Guilty, 79 U.

Pa. L. Rev.

484, 489

(1931) a ‘ . $3,

56,

Note, Withdrawal

of Guilty

Pleas Under

Rule 32(qd),

64 Yale L.J.

590, 598

(1955) ‘ ; 55,

Project,

Nineteenth

Annual Review

of Criminal

Procedure, 78

Geo. L.J.

699, 1005-06

(1990) ‘ ‘ : 32

Criminal

Procedure

Under the

Federal

Rules, Sec.

32:41,

(1967) ; ; é 54

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS

An official report of an opinion

of this case was issued by the United

States Court of Appeal for the Ninth

Circuit. The case number of this case

appeal is 90-10188. A copy of the opinion

is attached hereto as the appendix.

oy ae

i iar

No.

IN THE

SUPREME COURT OF THE UNITED STATES

May Term, 1992

HOWARD INAFUKU,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE NINTH CIRCUIT COURT OF APPEALS

STATEMENT OF JURISDICTION

The petitioner invokes the

jurisdiction of the Honorable Court to

review the decision cf the Ninth Circuit

Court of Appeals, affirming his conviction

and sentence in the Central District Court

of the State of California. The

petitioner contends the Ninth Circuit

Court has decided a federal question ina

way that conflicts with applicable

decisions of this Court. The date of

entry of the judgment sought to be

reviewed herein is July 10, 1991. A

petition for rehearing and a suggestion

for a hearing en banc was filed in the

Ninth Circuit Court of Appeals on July 24,

1991. The petition was denied pursuant to

an order issued on September 11, 1991. No

orders granting an extension of time

within which time to file this petition

for writ of certiorari have been issued.

The petitioner asserts this Court has

jurisdiction to review the judgment in

question by writ of certiorari, as ‘set

forth in 28 U.S.C. § 1257(3).

STATEMENT OF THE CASE

A. The Indictment

On August 17, 1991, Defendant-

Petitioner HOWARD INAFUKU was indicted.

Counts I through III charged him with

violating 21 U.S.C. § 841(a)(1), to wit,

possession with intent to distribute

methamphetamine, a Schedule II non-

narcotic controlled substance. Counts I

and II both involved the possession of on

kilogram of methamphetamine. Count I

related to July 23, 1987, while Count II

related to August 1-15, 1988. Count III

involved the possession of eight ounces of

methamphetamine on December 14, 1988.

Counts IV through VI of the

indictment charged INAFUKU with violating

21 U.S.C. § 846, to wit, conspiring to

possess with intent to distribute over 100

grams of methamphetamine in violation of

21 U.S.C. § 841(a)(1). Count IV related

to the time period of July 1988-August

1988, Count V related to the time period

of October 1988, and Count VI concerned 62

different transactions, only two of which

occurred after November 18, 1988, the

effective date of the mandatory minimum

sentencing provision codified at 21 U.S.C.

§ 841(b) (1) (A) (viii).

Counts VII and VIII of the

indictment charged INAFUKU with violating

26 U.S.C. § 7203 by failing to file income

tax returns for 1987 and 1988,

respectively.

B. The Guilty Plea

On December 4, 1989, a

Memorandum of Plea agreement was filed in

the district court, wherein INAFUKU agreed

to cooperate with the government and to

plead guilty to all counts of the

indictment except Count V. (E.R. 10-19')

The Memorandum of Plea Agreement contained

important provisions which could lead toa

sentence reduction as the result of

INAFUKU's anticipated post-plea

cooperation with the government. (E.R. 17-

18)

On December 4, 1989, INAFUKU

entered a guilty plea to Counts I through

IV and VI through VIII. (12/4/89

Transcript) At the plea hearing, the

court informed INAFUKU that the sentence

for Counts III and VI was "not less than

ten years." (Id. at 16) During the plea

hearing, INAFUKU's counsel was apparently

unfamiliar with key portions of the

indictment. Counsel interrupted while the

court was reading aloud the overt acts

listed in Count IV of the indictment, and

‘. "E.R." refers to Defendant-

Petitioner's Excerpt of Record filed with

the Ninth Circuit Court of Appeal.

erroneously told the court that one of the

overt acts related to Count V. (Id. at 8)

Counsel then incorrectly informed the

court, "These overt acts are listing the

acts of both Count Four and Five." (Ibid.

emphasis added. ) The prosecutor

immediately corrected these erroneous

statements, pointing out that the overt

acts for Counts IV and V occurred during

different time periods. (]Jbid.)

C. e a Wi Ww

On January 17, 1990, defendant

moved for the substitution of Reginald P.

Minn as his attorney-of-record. ((E.R.

76) INAFUKU filed a motion to withdraw

his guilty plea on March 22, 1990. (E.R.

3-42) The government opposed the motion.

(E.R. 43-55)

INAFUKU's plea withdrawal motion

argued that he was improperly induced to

enter his guilty plea because his former

counsel erroneously told him (1) that he

was subject to a 10-year mandatory minimum

term of imprisonment on Counts III and VI,

and (2) that he could receive a Sentencing

Guideline offense level of 37 to 39, which

could result in a maximum sentence of 327

months (over 27 years) of imprisonment.

(E.R. 35-37) INAFUKU's motion also argued

that the district court itself erroneously

informed him during the course of the plea

hearing that he was subject to the 10-year

mandatory minimum term of imprisonment.

(E.R. 36-37) INAFUKU noted that the

Presentence Report had set his offense

level at 30, which (without the 10-year

mandatory minimum sentence) could result

in imprisonment of as little as 97 months.

Thus, he urged that he had been

intimidated into entering his guilty plea

by the exaggerated information concerning

the severity of his potential sentence.

(E.R. 36, 41-42)

The offense level of 30 resulted

in a sentencing range of only 120 to 121

months even if the mandatory minimum

sentence was imposed. At the hearing on

the plea withdrawal motion on March 28,

1990, INAFUKU testified that his former

counsel had told him before the guilty

plea that his offense level would be about

37-39, which would result in a sentence of

about 25 to 27 years. (3/28/90 Tr. at 23-

24) INAFUKU related that counsel had

stated that he was subject to the 10-year

mandatory minimum sentence on Counts III

and VI. (Ibid. ) He testified that

counsel told him that it was best to plead

guilty pursuant to the plea agreement, in

order to try to lower his sentence as much

as possible. (Id. at 24) INAFUKU further

testified that the misinformation provided

by counsel affected his decision to plead

guilty. (Ibid) INAFUKU thought that he

had "no choice," because the cooperation

provisions of the agreement were the only

way he could lower his sentence. (Id. at

30, 52)

INAFUKU also testified that he

did not have the time to read the plea

agreement carefully before signing it

immediately prior to the plea proceeding

as “we had to rush." (Id. at 23) Thus,

he "wasn't kind of sure about a lot of

things." (Id. at 43) He had reviewed the

plea agreement in prison during prior

meetings with counsel, but without the

"last-minute changes" which were later

incorporated into it. (Id. at 25-27)

Prior to the plea hearing, counsel pointed

out the changes "really briefly." (Id. at

25)

INAFUKU had decided not to ask

counsel about certain questions he had

concerning the plea agreement because "it

seemed like he [counsel] was getting

upset" over INAFUKU's lack of

understanding. (Id. at 29) Counsel told

INAFUKU that the federal sentencing

guidelines were "really new" and had "just

come out" at that time, that "he never did

any federal cases before," and that "he

didn't understand everything that was

mentioned in there {the sentencing

guidelines]}." (Id. at 38)

INAFUKU's former counsel did not

appear as a witness at the hearing.

However, the government and INAFUKU

stipulated that if called as a witness

counsel would testify that he reviewed the

plea agreement with INAFUKU on at least

three occasions; that he told INAFUKU to

read the agreement and ask any questions

he had; that INAFUKU did ask questions;

that counsel explained certain of the

"most crucial" provisions of the agreement

to INAFUKU; and that counsel believed that

at the end of the process INAFUKU

understood all the provisions of the

agreement. (Id. at 36-37) The parties

also stipulated that counsel gave INAFUKU

an estimate, but not a guarantee, of a

sentencing guideline offense level of 37

to 39; and that counsel told INAFUKU that

INAFUKU might lower his sentence by

cooperation with the government, but that

there was no guarantee that such

cooperation would lower INAFUKU's

sentence. (Ibid.)

The district court denied the

plea withdrawal motion, ruling that

INAFUKU had not received ineffective

assistance of counsel and that INAFUKU had

not shown a fair and just reason for

withdrawing the plea. (Id. at 63-67)

D. The Sentencing

At the March 30, 1990,

sentencing hearing, INAFUKU stipulated (1)

that Count III involved 226 grams of

contraband, (2) that Count VI involved

between 1,000 and 4,024 grams of

contraband, and (3) that between 100 and

311.3 grams of the total Count VI amount

of contraband related to post-November 18,

1988, transactions. (3/30/90 Tr. at 3-5)

INAFUKU argued that Zi U.&6.C. §

841(b) (1) (A) (viii) permitted imposition of

a 10-year mandatory minimum sentence only

for an offense involving either (a) 100

grams or more of pure methamphetamine, or

(b) 1000 grams or more of a mixture or

substance containing methamphetamine. He

argued that the 226 grams of contraband

involved in Count III did not meet either

of these tests, because this quantity was

under 1000 grams and there was no proof of

the purity of the methamphetamine (which

was never sized by the government). He

also argued that only the amount of

contraband concerning the post-November

18, 1988, conduct for Count VI (between

100 and 311.3 grams) could be considered

in deciding whether to impose’ the

mandatory minimum sentence, because

November 18, 1988, was the effective date

of the mandatory minimum~= sentencing

statute. Inasmuch as there was no proof

of the purity of this unseized contraband,

which weighed less than 1000 grams, it did

not meet either of the two tests for

imposing the mandatory minimum sentence.

(3/30/90 Tr. at 9-12, 14-15; see also E.R.

29-32)

The district court ruled that

the mandatory minimum sentencing statute

required a quantity of at least 100 grams

of pure methamphetamine or at least 1000

grams of a arene substance containing

methamphetamine. (Id. at 23) Thus, the

court ruled that it would not impose the

mandatory minimum sentence in Count III.

(Ibid.) However, the court ruled that as

to Count VI it would consider all of the

contraband involved, not just the post-

November 18, 1988, transactions. Thus,

the court imposed the mandatory minimum

sentence upon Count VI on the basis that

INAFUKU had conspired to distribute more

than 1000 grams of a substance with a

detectable amount of methamphetamine.

(Id. at 22-24.)

INAFUKU was sentenced to

concurrent 10-year terms of imprisonment

for Counts I through IV and Count VI, and

to one year terms of imprisonment for

Counts VII and VIII (concurrent to each

other and to the 10-year terms). [e.R.

69) INAFUKU was also sentenced to

concurrent five-year terms of supervised

release for Counts I through IV and Count

VI, and to one-year terms of supervised

release for Counts VII and VIII

(concurrent to each other and to the five-

year terms). (E.R. 70) Finally, the

district court imposed a $17,500 fine upon

INAFUKU. (E.R. 70) The court stated that

although INAFUKU's financial profile and

employment record "indicate that you have

no available assets," INAFUKU reportedly

had $307,000 in income during the period

of 1987-88 and reportedly had used friends

and relatives to purchase gold and stolen

jewelry for him. (3/30/90 Tr. at 32-33).

INAFUKU is currently incarcerated at

Terminal Island in California.

ARGUMENT

I. THE MPOSITION OF HE ___10-YEAR

NDATORY MINIMUM SENTENCE ON COUNT

V1 PURSUANT TO 21 U.S.C. §

4i(b viii) WAS VIOLATION OF

HE X OS USE OF HE

UNITED STATES CONSTITUTION.

A. Standard fo view

Because the only issue presented

to this court pertaining to petitioner's

sentencing concerns whether the imposition

of the 10-year mandatory minimum imposed

pursuant to 21 U.S.C. § 841(b) (1) (A) (viii)

was in violation of the constitutional

proscriptions against laws enacted ex post

facto, the issue is solely one of law and

must be reviewed de novo, giving due

deference to the district court's

application of the facts, none of which

are disputed. United States v. Restrepo,

903 F.2d 648, 651 (9th Cir. 1990).

B. Argument

Article I of the Constitution

prohibits ex post facto laws both in

section 9, clause 3 and section 10, clause

1. Marks v. United States, 430 U.S. 188,

191 (1977). These e ost acto

prohibitions are "a limitation upon the

powers of the legislature," and are based

upon the principle "that persons have a

right to fair warning of that conduct

which will give rise to criminal penalties

-- {a principle which is] fundamental to

our concept of constitutional liberty."

Id.

The seminal case discussing

these ex post facto provisions, Calder v.

Bull, 3 Dall. 386 (1798) (opinion of

Chase, J.), discussed the clauses purposes

as follows:

"The prohibition against their

making any ex post facto laws

was introduced for greater

caution, and very probably arose

from the knowledge, that

Parliament of Great Britain

claimed and exercised a power to

pass such laws, under’ the

denomination of bills of

attainder, or bills of pains and

penalties; ... . Sometimes

they respected the crime by

declaring acts to be treason,

which were not treason when

committed; at other times they

violated the rules of evidence .

- ¢ at other times’ they

inflicted punishments, where the

party was not, by law, liable to

any punishment; and in other

case, they inflicted greater

punishment, than the law annexed

to the offense. --The ground for

the exercise of such legislative

power was this, that the safety

of the kingdom depended on the

death. or other punishment,of

the offender; as if traitors,

when discovered, could be so

formidable, or the government so

insecure! With few exceptions,

the advocates of such laws were

stimulated by ambition, or

personal resentment, and

vindictive malice. To prevent

such, and similar, acts of

violence and injustice, I

believe, the Federal and State

Legislatures, were prohibited

from passing any bill of

attainder; or any ex post facto

law." Id. at 389 (footnotes

omitted).

Justice Iredell, in

his

concurring opinion in Calder, noted a

further basis for constitutional

prohibition against ex post facto laws

encompassing a fundamental principal "that

legislative enactments 'give fair warning

of their effect and permit individuals to

rely on their meaning until explicitly

changed.'" Miller v. Florida, 482 U.S.

423, 429 (1987), quoting Weaver v. Grahan,

450 U.S. 24, 28-29 (1981).

The ex post facto clause was

thereafter construed to prohibit a statute

from retrospectively increasing a sentence

for criminal conduct which has occurred

prior to the effective date of the

statute, whether such an increase is

accomplished directly or indirectly.

Weaver v. Graham, 450 U.S. 24 (1981);

Miller v. Florida, 482 U.S. 423 (1987).

In Miller v. Florida, 482 U.S.

423 (1987), a state's guidelines

sentencing system was revised, after the

date of the defendant's offenses, to

increase the number of points assigned to

sexual offenses. This resulted in an

increased sentence for the defendant. Id.

at 424-428. The Supreme Court held that

the statute violated the ex post facto

prohibition because it "makes more onerous

the punishment for crimes committed before

its enactment." Id. at 435.

In INAFUKU's case, the district

court used transactions which occurred

prior to the effective date of the

mandatory minimum sentencing law to push

the total amount of contraband over the

necessary level for the mandatory minimum

sentence to apply to Count VI. It was

only as of November 18, 1988 (the

effective date of that law), that INAFUKU

was provided notice that trafficking in

quantities of contraband above the level

specified in that law could result in the

imposition of the mandatory minimum terms

set forth in that law. After November 18,

1988, INAFUKU did not traffic in such

quantities.

INAFUKU is aware of the general

principle that a conspiracy may be

punished under the sentencing law in

effect at the time of the conspiracy's

termination. However, he urges that his

case does not fall within this general

principle. The application of a penalty

provision punishing conspiracy in general

does not depend upon the specific quant’ '’’

of contraband transacted. In INAFUKU's

case, the mandatory minimum sentence for

Count ‘I is entirely dependent upon the

amount of contraband transacted. The

district court's ruling would permit

application of the mandatory minimum

sentence to a defendant who possessed no

contraband after the effective date of the

law, as long as the conspiracy existed one

day after the law became effective. Even

more distressing, because of the ongoing

changes in federal criminal legislation,

future changes in the law--for instance,

the addition of new crimes for which

capital punishment can be imposed--could

be imposed in a mischievesous and tragic

retroactive manner if this interpretation

of conspiracy laws is permitted.

For example, prosecutors, simply

by arbitrarily including a_ conspiracy

count in an indictment, could seek the

death penalty for crimes occurring years

before the enactment of the law. This

Situation is exacerbated even further

where, like in the scenario in United

States v. Pinkerton, 328 U.S. 640 (1964),

a co-conspirator commits a foreseeable act

after the date of the change of law, which

then exposes the defendant to the more

severe penalty when, in fact, no overt act

was committed by the defendant after the

effective date of the legislation.

The two cases relied upon by the

district court in ruling upon this issue

(3/30/90 Tr. at 22-23) are readily

distinguishable. In j a -

Calabrese, 825 F.2d 1342 (9th Cir. 1987),

defendants Calabrese and Logan were

convicted for a conspiracy that existed

from October 1982 to November 2, 1984, a

defendant Logan was also convicted of

manufacturing and distributing

methamphetamine from November 1983 to

November 2, 1984. Id. at 1344-45. The

increased maximum sentence of the

Comprehensive Crime Control Act of 1984

became effective on October 12, 1984,

before the termination of the

aforementioned continuing offenses, and

the district court imposed these increased

maximum sentences upon Calabrese and

Logan. Jd. at 1345-46. This court held

that such sentences did not violate the ex

post facto prohibition. Id. at 1346.

In Calabrese, however, the

increased maximum sentence did not depend

upon illegal acts which occurred prior to

the effective date of the new law. As

long as the defendants committed any

portion of the charged offenses after

October 12, 1984, they were subject to the

increased sentence. In INAFUKU's case, by

contrast, imposition of the mandatory

minimum sentence in count VI explicitly

depended upon his trafficking activity

which occurred prior to November 18, 1988.

The mandatory minimum term could not be

applied without reference to, or

consideration of, his illegal actions that

pre-dated the law.

In United States v. Gibbs, 813

F.2d 596 (3d Cir.), cert denied, 484 U.S.

822 (1987), Gibbs was convicted of

participating in a marijuana conspiracy.

Id. at 598-99. The conspiracy “began in

the spring of 1979 and ended on or about

October 6, 1980." aa. at 602. The

enhanced maximum sentence provision which

the district court imposed upon Gibbs, for

an offense involving over 1,000 pounds of

marijuana, became effective on September

26, 2980. Ibid. The Third Circuit ruled

that application of this provision to

Gibbs' offense did not violate the ex post

facto prohibition. Ibid. However, the

indictment against Gibbs specifically

charged that "on October 5, 1980, he had a

telephone conversation relative to the

plane load of marijuana and that on

October 6, 1980, the airplane landed with

1,487 pounds of marijuana." Ibid. "Most

important, it was never disputed at trial

that the amount of marijuana involved [on

the airplane} was in excess of 1,000

pounds." Id. at 603. Thus, unlike

INAFUKU's case, Gibbs' sentence was wholly

supported by his illegal transactions

occurring after the effective date of the

sentencing statute.

In essence, INAFUKU received a

10-year mandatory minimum sentence on

Count VI only because the district court

used pre-November 18, 1988, traffickino

activity to reach the contraband quantity

level necessary to impose such a sentence.

This retrospective application of the law

to increase the severity of INAFUKU's

sentence was unconstitutional.. moreover,

the court's incorrect determination that

the 10-year minimum was applicable in

\\\

Count VI resulted in a miscalculation of

the appropriate guideline range for Counts

II through IV. (3/30/90 Tr. at 26)

II. THE DISTRICT COURT ERRED BY DENYING

INAFUKU'S MOTION TO WITHDRAW HIS

GUILTY PLEA BECAUSE OF MISADVICE

OUT CRITICAL SENTENCING

S NCES

A. andard view

"On appeal from the denial of a

motion for leave to withdraw the plea, the

standard of review is whether the trial

court abused its discretion." United

States v. Navarro-Flores, 628 F.2d 1178,

1183 (9th Cir. 1980); accord. United

States v. Kay, 537 F.2d 1077, 1078 (9th

Cir. 1976).

B. Argument

A guilty plea waives several of

the defendant's most important

constitutional rights -- his right against

selfincrimination, his right to confront

the witnesses against him, and his right

to a trial by jury. Boykin v. Alabama, 395

U.S. 238, 242-43 (1969). It also waives

appellate review of most non--

jurisdictional claims not related to the

validity of the plea itself. Project,

Nineteenth Annual Review of Criminal

Procedure, 78 Geo. L.J. 699, 1005-06

(1990). Entry of a guilty plea is a "grave

and solemn act." Brady v. United States,

397 U.S. 742, 748 (1970). It must be

"accepted only with care and discernment."

Id.

Thus, to be “voluntary” in the

context of the Fifth Amendment due process

of law, the guilty plea must be "a

knowing. intelligent act done with

sufficient awareness of the relevant

circumstances and likely consequences."

Id. (emphasis added); see McMann _v.

Richardson, 397 U.S. 759, 766 (1970); Iaea

Vv. Sunn, 800 F.2d 861, 865 (9th Cir.

1986). A knowing and intelligent plea is

"entered by one fully aware of the direct

consequences .. . . " Brady v. United

tates, 397 U.S. at 755. The plea cannot

be induced by misrepresentation. Id.

As discussed infra, INAFUKU's

guilty plea was induced by his counsel's

ineffective representation and the

district court's violation of Federal Rule

of Criminal Procedure ll(c)(l). It was

definitely not a knowing and intelligent

plea entered with sufficient awareness of

the likely consequences.

i. Counsel's Advice On INAFUKU's

Guideline Offense Level

ane The Applicability Of The 10-Year

Mandatory Minimum

Sentence Was Erroneous

INAFUKU's former counsel

admittedly advised him that his Sentencing

Guidelines offense level was ‘an estimated

37 to 39. (3/28/90 Tr. at 37) This offense

level, if it had been correct, would have

resulted in a sentence range of about 25

to 27 years. (3/28/90 Tr. at 23) Actually,

however, INAFUKU's offense level was 30.

This offense level resulted an ics

sentencing range of 120-121 months even

applying the 10-year mandatory minimum

sentence (Presentence Report at 12), and

could have resulted in a sentence as low

as 97 months if the 10-year mandatory

minimum sentence had not been applied.

(E.R. 36)

INAFUKU's former counsel also

advised him that he was subject to the 10-

year mandatory minimum sentence on Counts

III and IV. (3/28/90 Tr. at 23-24). As

discussed supra in Section I, the district

court did not apply the mandatory minimum

sentence to Count III and should not have

applied it to Count VI.

- The District Court's Advice On

The Applicability Of The 10-Year

Mandatory Minimum Sentence Was Erroneous

At INAFUKU's plea hearing’ the

district court instructed him that the

sentence for Counts III and IV was "not

less than ten years." (12/4/89 Tr. at 16)

As discussed supra in Section I, the

district court subsequently did not apply

the mandatory minimum sentence to Count

III, and should not have applied it to

Count VI.

: The Guilty Plea Was Not Entered

With The Effective “a

Assistance Of Counsel

Because of his counsel's

misadvice, INAFUKU labored under the

misapprehension that he faced a sentencing

range of 25 to 27 years, and a mandatory

minimum sentence of 10 years. INAFUKU knew

that the only way he could reduce such a

severe sentence was through the plea

agreement's provision for cooperation with

the government and the consequent

opportunity for a sentence’ reduction

motion by the government. INAFUKU believed

that he had "no choice" but to plead

guilty. (3/28/90 Tr. at 30, 52) If

INAFUKU had been accurately informed that

his sentence could be as low as 97 months,

he could have made a knowing and

intelligent choice to forego the plea

agreement and proceed to trial.

Such misadvice might have been

avoided if counsel had been more familiar

with the Sentencing Guidelines and the

mandatory minimum sentencing law _ for

methamphetamine. ? The fact that these

y Counsel's general lack of

diligence was evident at the plea hearing,

where he did not realize that the overt

acts listed in the indictment for Counts

IV and V occurred during different time

provisions were relatively new is not

important. Counsel was under a duty to

represent INAFUKU "zealously." Hawaii Code

of Professional Responsibility, Canon 7.

"A lawyer shall not: (1) Handle a legal

matter which he knows or should know he is

not competent to handle, without

associating with a lawyer who is competent

to handle it, (2) Handle a legal matter

without preparation adequate in the

circumstances." Hawaii Code of

Professional Responsibility, Disciplinary

Rule 6-101(A) (1) (2).

In circumstances comparable to

the case at bar, courts have held that

guilty pleas improperly induced by defense

counsel violated due process. In most of

these cases, defense counsel, in good

faith, gave the defendant mistaken advice

about sentencing factors.

periods. [12/4/89 Tr. at 8]

In IJaea v. Sunn, 800 F.2d 861

(9th Cir. 1986), the defendant's counsel

misadvised him about the applicability of

a minimum sentencing statute and about his

probable sentence if he pled guilty. The

court of appeal remanded the case to the

district court to determine whether there

waS a reasonable probability that the

misadvice had induced the guilty plea and

that the defendant was thereby prejudiced.

The court stressed that a guilty plea

"must be a knowing, intelligent act done

with sufficient awareness of the relevant

circumstances and likely consequences."

Id. at 865. The court also emphasized that

defense "counsel have a duty to supply

criminal defendants with necessary and

accurate information." Id. Upon remand,

the district court found prejudice to the

defendant and vacated the guilty plea.

Iaea v. Sunn, Civ. No. 83-1372 (D. Hawaii

Dec. 23, 1986).

In Kennedy v. Maggio, 725 F.2d

269 (5th Cir. 1984), defense counsel

erroneously advised the defendant that he

would

face the death penalty if he _ were

convicted at trial. The guilty plea was

held invalid because counsel's misadvice

had not permitted the defendant to "make

an informed and conscious choice." Id. at

272.

In O'Tuel v. Osb , 706 F.2d

498 (4th Cir. 1983), the defendant's

counsel misinformed him that if he pled

guilty to second-degree murder he would be

eligible for parole after serving 10 years

of imprisonment. Actually, the defendant

would had to have served 20 years to

obtain parole eligibility. The court held

that the plea was not knowing and

intelligent because defense counsel's

gross misadvice was relied upon by the

defendant in reaching his decision to

plead guilty. Even though avoiding the

death penalty was the defendant's "major

concern," the misadvice about parole still

made the guilty plea invalid. Id. at 501.

In Strader v. Garrison, 611 F.2d

61 (4th Cir. 1979), the defendant was told

by his at’orney that if he pled guilty it

would not affect the parole eligibility

date on aesentence he was currently

serving. Actually, his counsel misadvised

him since the guilty plea would result in

a seven-year delay in parole eligibility.

The court held that the guilty plea was

not knowing and intelligent because the

defendant relied upon the misadvice. Id.

at 65.

In Hammond v. United States, 528

F.2a 15 (4th Cir. 1975), defense counsel

told tne defendant that if he was

convicted on all counts at trial instead

of pleading guilty, he faced a 90-year

sentence. Actually, the defendant was only

subject to a 55-year term if he proceeded

to trial. The court found that the

defendant's subsequent guilty plea was not

knowing and intelligent, since "in order

to plead voluntarily, a defendant must

know the direct consequences of any plea,

including the actual value of = any

commitments made to him." Id. at 19.

In United States ex rel. Hill v.

Ternullo, 510 F.2d 844 (2d Cir. 1975), the

defendant contended that his’ defense

counsel had misadvised him on the minimum

and maximum amount of incarceration he

could receive. The court remanded the case

for factual findings, and directed the

district court to grant relief if the plea

was entered without an understanding of

the true sentences possible under the

circumstances. See also United States ex

rel. Leeson v. Damon, 496 F.2d 718 (2d

Cir.) (defense counsel fails to inform

defendant that he is subject to increased

sentence because of his age; guilty plea

must be set aside because based upon such

misadvice), cert. denied, 419 U.S. 954

(1974).

In conclusion, "'an intelligent

assessment of the relative advantages of

pleading guilty is frequently impossible

without an attorney."' Iaea v. Sunn, 800

F.2d at 865 (quoting Brady v. United

States, 397 U.S. at 748 n.6). In INAFUKU's

case, his attorney offered him a "gross

mischaracterization of the likely

outcome." Jbid. This was. particularly

inexcusable in a Guidelines case. The

Guidelines' step by step, empirical

approach to sentencing attempts’ to

"minimize the discretionary powers of the

[OO OO ee

sentencing court," to promote "uniformity

in sentencing by narrowing the wide

disparity in sentences imposed by

different federal courts for’ similar

criminal conduct by similar offenders,"

and to promote "proportionality in

sentencing through a system that imposes

appropriately different sentences’ for

conduct of different severity." Sentencing

Guidelines Sec. 1A3, at 1.2-1.3. The

Guidelines permit counsel to "no longer

work in the dark" when determining the

likely sentence a defendant will receive,

because they "create a clear, definitive

expectation" of the sentence that will be

imposed. Id., Sec. l1A4(c), at 1.8.

4. The Guilty Plea Was Entered In

Violation Of Federal Rule Of Criminal

rocedure c) (1

Federal Rule of Criminal

;

Procedure ll(c)({1l) requires the district

court, before accepting a guilty plea, to

inform the defendant of various important

penal consequences of his plea and to

ensure that he understands those

consequences, such as the maximum

sentence, the effect of a special parole

term or supervised release term, and "the

mandatory minimum penalty provided by law,

if any. . . ." [Emphasis added.]} Failure

to comply with such requirements of Rule

ll(c)(1) can result in reversible error.

E.g., United States v. Jaramillo-Suarez,

857 F.2d 1368 (9th Cir. 1988) (the court

vacates guilty plea because district court

did not inform defendant of maximum

sentence); United States v. Sharon, 812

F.2d 1233 (9th Cir. 1987) (the court

vacates guilty plea because district court

did not inform defendant of special parole

term); cf. Carter v. McCarthy, 806 F.2d

1373 (9th Cir. 1986) (the court affirms

habeas corpus relief when state court

failed to inform defendant of mandatory

parole term).

In INAFUKU's case, as discussed

supra in subsection C, the district court

misinformed him at the plea hearing that

the mandatory minimum sentence of 10 years

applied to Counts III and VI. As the case

law discussed below demonstrates, such

crucial misinformation about a direct

consequence of the plea violated the

requirements of Rule 1l.

In United States v. Colunga, 786

F.2d 659 (5th Cir. 1986), cert. denied,

484 U.S. 857 (1987), "Colunga was told [by

the district court] that the maximum

prison sentence was ten years, five for

each count." Id. at 658. However, on

appeal it was determined that the actual

maximum sentence was fifteen to twenty

years. Id. Thus, the court held that

"Colunga should be given the opportunity

to plead anew with correct information

regarding the maximum possible

punishment." Ibid.

In United States v. Herrold, 635

F.2d 213 (3d Cir. 1980), the district

court left the defendant with the

impression "that he faced a maximum

sentence of forty-five years," but

actually the defendant could only receive

a maximum sentence of 25 years. Id. at

214. The appeals court held that this Rule

11 violation mandated that the defendant

be permitted to "plead anew." Id. at 215-

16. As the court stressed, Rule 11 "is

designed to insure that the pleader is

made aware of the outer limits of

punishment. At the very least, this means

that he must be apprised of the period of

required incarceration." Jd. (emphasis

added).

In United States v. Alejandro,

569 F.2d 1200 (2d Cir. 1978), the district

court informed the defendant that he could

receive a maximum prison sentence of 15

years and "a special parole term of at

least three years." Id. at 1201. Actually,

the defendant was subject to a maximum

special parole term of life. Id. The

appeals court recognized that "where the

[district] court has failed to comply with

that rule [Rule ll(c)] the plea must be

treated as a nullity," and ruled that the

"guilty plea must therefore be vacated and

the defendant given the opportunity to

plead again to the indictment." Id. at

120102.

In United States v. Del Prete,

567 F.2d 928 (9th Cir. 1978), the district

court informed the defendant that a three

year special parole term could be imposed,

but actually the three-year special parole

term was the minimum term which could be

imposed and it was mandatory. Id. at 929.

The court quoted Rule 1ll(c)(1), including

the portion concerning mandatory minimum

penalties, and emphasized that

"(djisclosure of the factors set forth in

Rule 11 is mandatory." Ibid. This court

held that the district court's

noncompliance with Rule 11 concerning the

true nature of the mandatory minimum

parole term "requires us to set aside the

defendant's conviction and remand the

case." Ibid.

Further, the court in Del Prete

rejected the government's argument that

the Rule 11 violation was "cured by a

written guilty plea application which Del

Prete signed" that contained the proper

Rule 11 advice. Id. at 930.

In Government of Canal Zone vy.

Tobar, 565 F.2d 1321 (5th Cir. 1978), the

district court advised the defendant that

the maximum sentence was 15 years, but the

actual maximum sentence was life

imprisonment. Id. at 1321. The appeals

court held: “Because the district court

failed to comply with Rule 11 in accepting

Tobar's guilty plea, Tobar must be allowed

to plead anew." Id.

In Bunker v. Wise, 550 F.2d

1155 (9th Cir. 1977), the district court

properly advised the defendant of the

maximum prison sentence and fine, but did

not advise him of a mandatory minimum

special parole term of three years. Id. at

1156. The Court of Appeal for the Ninth

Circuit held that the mandatory minimum

parole term was a direct consequence of

the plea, and thus that the district

court's failure to comply with Rule 11

mandated that "Bunker should be afforded

the opportunity to plead anew." Id. at

1158-59.

In United States v. Crusco, 536

F.2d 21 (3d Cir. 1976), the district court

left the defendant with the impression

that the maximum length of his combined

imprisonment and special parole term was

seven years, while actually the maximum

term of imprisonment was seven years, in

addition to a minimum three year special

parole term. Id. at 23-24. The appeals

court ruled that the defendant "was not

unambiguously informed of the maximum

punishment he faced," and that the Rule 11

violation, "although inadvertent,"

entitled the defendant "to withdraw his

guilty plea and plead anew." Id. at 25.

In United States v. Harris, 534

F.2d 141 (9th Cir. 1976), the district

court failed to advise the defendant "that

a mandatory six-year special parole term

oer |

would be appended to his sentence." Id. at

142. The court stressed that Rule 1l(c) (1)

"specifies inter alia that the [district]

court must advise the defendant of ‘the

mandatory minimum penalty provided by law,

if any .. .,"' and ordered the district

court to "set aside the judgment and

conviction, and permit the defendant to

withdraw his plea of guilty and plead

anew." Ibid.

In United States v. Wolak, 510

F.2d 164 (6th Cir. 1975), the district

court did not accurately advise the

defendant of the three-year mandatory

special parole term. Id. at 165. Rather,

the district court advised the defendant

that there was a special parole term of

"up to three years." Id. at 166 (emphasis

added in original). The appeals court held

that the district court had to accurately

advise a defendant of a mandatory minimum

sentencing provision, and instructed the

district court "to vacate the sentence and

to permit petitioner to plead anew." Ibid.

Thus, Rule ll(c) (1) was violated

by the inaccurate information the district

court gave INAFUKU regarding the 10-year

mandatory minimum sentence. This misadvice

contributed to INAFUKU's decision to plead

guilty and the plea should be vacated.

5. The Guilty Plea Should Have Been

Set Aside Pursuant To Federal Rule of

imina °

Federal Rule of Criminal

Procedure 32 (d) states in relevant part:

"If a motion for a withdrawal of a plea of

guilty . . . is made before sentence is

imposed . . . the court may permit

withdrawal of the plea upon a showing by

the defendant of ir d__just

reason." (Emphasis added.) When a

defendant moves to withdraw a guilty plea

prior to sentence being imposed, as did

INAFUKU, he has no opportunity to use the

withdrawal motion as a device to gamble

upon the length of sentence that the court

will impose on the guilty plea. The

judicial process has not been finalized

prior to sentencing, and there is little

possibility of prejudice to the

prosecution if the plea is withdrawn at

that time. See Note, Pre-Sentence

Withdrawal of Guilty Pleas in Federal

Courts, 40 N.Y.U.L. Rev. 759, 762 (1965);

see also Note, The Withdrawal of the Plea

of Guilty, 79 U. Pa. L. Rev. 484, 489

(1931) (prior to sentence being imposed

defendant cannot use plea withdrawal as

device to speculate upon severity of

sentence that court will impose).

Prior to imposition of sentence

the court should permit withdrawal of a

guilty plea "if for any reason the

granting of the privilege seems fair and

just." Ke eval v. ite t S, 274

U.S. 220, 224 (1927); see 5 L. Orfield,

Criminal Procedure Under the Federal

Rules, Sec. 32:41, at 233 (1967); Note,

Pre-Sentence Withdrawal of Guilty Pleas in

Federal Courts, supra, at 759. Before

imposition of sentence the withdrawal of

the plea will cause only slight

inconvenience, Kadwell v. United States,

315 F.2d 667, 670 (9th Cir. 1963), so such

withdrawal motions must be "freely

allowed." Id.; accord United States v.

Erlenborn, 483 F.2d 165, 168 (9th Cir.

1973); United States v. Del Valle-Rojas,

463 F.2d 228, 229 (9th Cir. 1972); United

States v. Thomas, 415 F.2d 1216, 1217-18

(9th Cir. 1986).

The assumed guilt or innocence

of the accused should not be material to

the decision concerning pre-sentence plea

withdrawal. eval _v ited ates,

274 U«S. at 224; United States v. Webster,

468 F.2d 769, 771 (9th Cir. 1972), cert.

denied, 410 U.S. 934 (1973); Kadwell v.-

United States, 315 F.2d at 670 n.12. "Ina

society which considers a lack of due

process a form of injustice irrespective

of the guilt or innocence of the person

involved, allegations of innocence would

seem unnecessary." Comment, Federal

ina ocedure and Withdrawal of

Guilty Pleas, 22 U. Chi. L. Rev. 730, 736

(1955); see Note, Withdrawal of Guilty

Pleas Under Rule 32(d), 64 Yale L.J. 590,

598 (1955).

Even when the accused is in fact

guilty, it is important that he not be

turned over to the correctional

authorities who are supposed to reform him

while he believes that he has_ been

unfairly "“railroaded" into an unjust plea.

Comment, Withdrawal of a Plea of Guilty,

22 J. of Crim. L. & Criminology 199, 202

(1941); Note, Wi Ww a a

of Guilty, supra, at 491. The more severe

the sentence, the more important it is

that withdrawal of a guilty plea should

have been allowed. Id. at 488. This

principle applies tto INAFUKU, who is

currently serving a mandatory minimum ten-

year sentence.

A court should permit pre-

sentence plea withdrawal when, as in

INAFUKU's case, the plea was induced by

"misapprehension of the defendant's legal

rights." j ates v. maro, 93

F.R.D. 826, 828 (N.D. Ga. 1982); see

United States v. Davis, 212 F.2d 264, 267

(7th Cir. 1954). The primary question

should be: "Was the accused misled by any

cause whatsoever as to... the effect of

his plea... ?" Comment, Withdrawal of a

Plea of Guilty, supra, at 202. It is

imperative "that no defendant be sentenced

who has entered his plea because of

misapprehension." Id.; see Note,

Wi awa j e de e

32(d), supra, at 599.

Even assuming arguendo that the

above~discussed misadvice of INAFUKU's

counsel and the district court regarding

sentencing did not clearly violate

constitutional standards or Rule 11, such

misadvice generated misapprehension in

INAFUKU's mind and created a "fair and

just reason" for permitting a presentence

withdrawal of the guilty plea pursuant to

Rule 32(d). Comparison with other cases

where defendants raised issues regarding

their misapprehension demonstrates’ the

propriety of allowing a plea withdrawal in

INAFUKU'sS case.

In United States v. Savage, 561

F.2d 554, 556-57 (4th Cir. 1977), the

defendant entered a plea agreement for the

prosecution to recommend ae five-year

sentence. The defendant assumed the sourt

would likely follow the sentence

recommendation until the court stated

otherwise prior to sentencing. The

defendant's motion to withdraw the guilty

plea was denied by the district court, and

a 10-year sentence was imposed. The

appellate court remanded the case to the

district court with instructions to permit

the defendant to withdraw the plea unless

the prosecution could show prejudice from

a withdrawal.

In United States v. Morgan, 567

F.2d 479, 492-94 (D.C. Cir. 1977), the

defendant pled guilty under the

misapprehension that an insanity defense

would probably not be successful. Since

ae ey * pee Silk Wildl a nl

Sie

the defendant would soon be too old to

qualify for Youth Corrections Act

sentencing, he entered the plea. Later,

before sentencing, a psychiatric report

demonstrated that the chances for an

insanity defense were much better than the

defendant had originally thought. The

appellate court reversed the lower court's

denial of the defendant's pre-sentencing

motion to withdraw the guilty plea,

holding that the lower court had abused

its discretion in denying the motion.

In United States v. Pressley,

602 F.2d 709 (sth Cir. 1979), the

defendant moved prior to sentence to

withdraw his guilty plea. The appellate

court noted that he "may not have

unuerstood that the plea bargaining

arrangement allowed the judge to impose a

sentence as severe as ten years'

imprisonment." Id. at 711. The appellate

court remanded the case to the district

court for a hearing, emphasizing that if

the defendant "was mistaken as to the

terms of the plea bargain, his original

plea must be deemed less than a fully

knowledgeable waiver of his rights." Id.

The court indicated that if "there appears

to be any reason to allow withdrawal of a

guilty plea prior to sentencing, leave

should be freely granted," and recognized

that courts "must always be diligent to

ascertain whether a plea of guilty was

understandingly made" or entered "as a

result of mistake." Id.

In United States v. Fairhurst,

388 F.2d 825, 826-27 (3d Cir.), cert.

Genied, 392 U.S. 912 (1968), defense

counsel misinformed the defendant that he

would probably receive a one year sentence

if he pled guilty. Defense counsel had

based his advice on the district judge's

statements at the pretrial conference. The

defendant pled guilty and received a

three-year sentence. The district court

then granted the defendant's post-sentence

motion to withdraw his guilty plea because

of defense counsel's misadvice.

The defendant in United States

v. Shapiro, 16 F.R.D. 499, 500-01 (E.D.

Wis.), appeal dismissed, 222 F.2d 836 (7th

Cir. 1955), thought that he was a United

States citizen. Thus, he _ pled nolo

contendere to a charge without’ the

knowledge that the Immigration and

Naturalization Service would or could

institute deportation proceedings against

him after his conviction. The district

court granted the defendant's motion to

withdraw the plea after such deportation

proceedings were instituted.

As the foregoing cases. and

authorities illustrate, the rule

permitting plea withdrawal should be

construed broadly to assist defendants who

act in good faith. See Comment, Federal

Criminal Procedure and Withdrawal of

Guilty Pleas, supra, at 737.

ONC ON

For all the foregoing’ reasons,

INAFUKU's conviction should be vacated,

with instructions that the district court

permit him to withdraw his guilty plea and

plead anew. Assuming arguendo that the

convictions are not vacated, INAFUKU's

case should be remanded for resentencing,

with instructions that the district court

not impose the 10-year mandatory minimum

sentence.

DATED: November 7, 1991

Respectfully submitted,

SHERMAN ELLISON

Attorney at Law

- -

By: ee CLL rae

‘-- SHERMAN ELLISON

Attorney for Petitioner

HOWARD INAFUKU

APPENDIX

INDEX TO APPENDIX

OPINION OF THE UNITED

STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DISTRICT COURTS RULING

ON MOTION TO WITHDRAW

PLEA

TRANSCRIPT OF SENTENCING

IN THE DISTRICT COURT

PAGE

APPENDIX A

< -

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 90-10188

Vv D.C. No.

H CR-89-01197-ACK

OWARD INAFUKU, aka Howie, Se

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted

June 10, 1991—San Francisco, California

Filed July 10, 199]

Before: Procter Hug. Jr.. Mary M. Schroeder and

Charles Wiggins, Circuit Judges.

Opinion by Judge Schroeder

SUMMARY

Criminal Sentencing

Affirming a district court judgment of sentence. the court

of appeals held that the ex post facto clause was not violated

by the inclusion of methamphetamine involved prior to the

effective date of a statute imposing a mandatory minimum

sentence in the determination of the quantity involved in the

Ongoing conspiracy after the effective date of the statute.

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Appellant Howard Inafuku was convicted of drug-related

charges. The minimum ten-year sentence required by 21

U.S.C. § 841(b)(1) was imposed because the amount of

methamphetamine mixture involved in the conspiracy

exceeded 1,000 grams. The statute became effective Novem-

ber 18, 1988. The conspiracy for which Inafuku received the

mandatory minimum sentence began before that date and

ended after that date. At sentencing, the parties stipulated that

the total amount of methamphetamine mixture involved in the

conspiracy exceeded 1,000 grams, but that at most only 311

grams were involved after November 18, 1988. Inafuku

argued that the district court violated the ex post facto clause

of the Constitution by including the methamphetamine

involved in the conspiracy prior to November 18, 1988, in

calculating the quantity involved in the conspiracy.

[1] When there is a change in the level of punishment that

becomes effective during the course of an ongoing conspir-

acy, it is not a violation of the ex post facto clause of the Con-

stitution to apply the law as it exists at the end of the

conspiracy in fashioning a punishment for convicted conspira-

tors. Punishment for conspiracy attaches not to the substantive

offenses committed during the course of the conspiracy, but

to the agreement to commit those offenses, which embraces

the entire period during which the conspiracy was in effect.

{2] Recognizing that conspiracy is a continuing offense, the

Guidelines contemplate the aggregation of all amounts of con-

traband involved in a conspiracy in determining the appropn-

ate punishment for the conspiracy. [3] Thus, agreeing with the

Fourth Circuit, the court held that the principles of conspiracy

allow a defendant to be punished for becoming a-party to an

agreement to facilitate the commission of substantive

offenses, regardless of whether that defendant is also to be

punished for those substantive offenses themselves. There-

fore, at the point of entering an agreement, a conspirator

becomes accountable for all conduct of the conspiracy, and

proof of a siight connection to the conspiracy is sufficient to

support such accountability. [4] Since agreement to partici-

A-2

pate in the conspiracy occurs not only at the point of entry

into the conspiracy but also on an ongoing basis until with-

drawal or cessation of the conspiracy. it does not violate the

prohibition against ex post facto laws to apply the standards

that were in effect at the point at which the conspiracy termi-

nated, in order to punish Inafuku for conspiracy to distribute

the entire amount of contraband actually involved in the con-

spiracy. Because Inafuku failed to disengage from the con-

spiracy before the harsher punishment provisions became

effective or before it had sold over 1,000 grams of contra-

band, his conduct was punishable under the mandatory mini-

mum sentence provisions after those provisions took effect.

COUNSEL

Reginald P. Minn. Honolulu, Hawaii, for the defendant-

appellant.

Joseph Dougias Wilson. United States Department of Justice.

Washington, D.C.., for the plaintuff-appellee.

OPINION

SCHROEDER, Circuit Judge:

Howard Inafuku appeals from the sentence which was

imposed following his plea of -guilty to multiple crimes

involving methamphetamine, as well as failure to file income

tax returns. The principal issue on appeal concerns imposition

of the minimum ten-year sentence required pursuant to 21

U.S.C. § 841(b)(1). The sentence was imposed because the

amount of methamphetamine mixture involved in the relevant

conspiracy exceeded 1,000 grams.’ The statute became effec-

~~ ‘The statute as presently codified to eluminate a typographical error in

effect at the ume of this sentence, and which 1s not matenal to this appeal.

1S as follows:

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tive November 18, 1988. The conspiracy for which Inafuku

received the mandatory minimum sentence began before that

date and ended after that date. Inafuku contends that the dis-

trict court violated the ex post facto clause of the Constitution

by including the methamphetamine involved in the conspiracy

prior to November 18, 1988 in calculating the quantity

involved in the conspiracy.

At sentencing, the parties stipulated that the total amount of

methamphetamine mixture involved in the conspiracy

exceeded 1,000 grams, but that at most only 311 grams were

involved after November 18, 1988. The district court, over

Inafuku's objection, aggregated the amounts of methamphet-

amine involved both before and after the effective date of the

Statute and applied the ten-year minimum. It did so on the

authority of United States v. Calabrese, 825 F.2d 1342 (9th

Cir. 1987). In Calabrese we held that increased penalties con-

tained in the Comprehensive Cnme Conrol Act of 1984

applied to a methamphetamine conspiracy that began before

the effective date of the Act and continued after it. We there

applied the new law because there was substantial evidence to

show that the conspiracy continued past its effective date.

The ex posi facto clause of the United States Constitution,

Article I, Section 9, bars the imposition of increased punish-

ment retroactively to criminal conduct that occurred prior to

the effective date of the increase. See Miller v. Florida, 482

U.S. 423 (1987). The issue we must resolve, therefore, is

whether aggregation of amounts of contraband distmbuted

before and after the effective date of the statute, but during the

course of a single ongoing conspiracy, is an unconstitutionally

retroactive application of post-enactment standards.

In the case of a violauon of ... this secuon involving 100 grams

or more of methamphetamine, ... or 1 kilogram or more of a

muxture or substance containing a detectable amount of metham-

phetarmine. such person shall be sentenced to a term of umpnson-

ment which may not be Jess than 10 years ....

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[1] Conspiracy is a continuing offense, which is charged

and punished as one crime from beginning to end. See Cala-

brese, 825 F.2d at 1346. The crime of conspiracy is entirely

separate from the completed substantive offenses committed

pursuant to the conspiracy, and it is appropriately punished as

a separate offense. Jd. When there is a change in the level of

punishment that becomes effective during the course of an

ongoing conspiracy, it is not a violation of the ex post facto

clause of the Constitution to apply the law as it exists at the

end of the conspiracy in fashioning a punishment for con-

victed conspirators. /d. See also United States v. Sheffer, 896

F.2d 842, 844-45 (4th Cir.), cert. denied, 111 S. Ct. 432

(1990), United States v. White, 869 F.2d 822, 826 (Sth Cir.),

cert. denied, 109 S. Ct. 3172 (1989). This rule is consistent

with the principle that punishment for conspiracy attaches not

to the substantive offenses committed during the course of the

conspiracy, but to the agreement to commit those offenses,

which embraces the entire penod during which the conspiracy

was in effect. See Calabrese, 825 F.2d at 1346.

[2] Recognizing that conspiracy is a continuing offense, the

Guidelines contemplate the aggregation of all amounts of con-

traband involved in a conspiracy in determining the appropn-

ate punishment for the conspiracy. See U.S.S.G. § 2D1.4,

comment (note 1). See also United States v. Alvarez-

Cardenas, 902 F.2d 734, 736 (9th Cir. 1990)(Guideline

offense level determined by amount defendant conspired to

sell). In applying the Guidelines the Fourth Circuit has

expressly held that there is‘no violation of ex post facto pnin-

ciples when a coun aggregates amounts transacted before and

after the effective date of the Guidelines to determine the pun-

ishment appropnate for conviction of participation in a single

ongoing conspiracy. Sheffer, 896 F.2d 842. The agreement to

distribute the total amount of controlled substance involved in

the conspiracy, the Fourth Circuit held, existed on the effec-

tive date of the Guidelines, “and every day thereafter until the

conspiracy was affirmatively terminated.” 896 F.2d at 845.

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[3] We agree with the Fourth Circuit and reach the same

result here. The principles of conspiracy allow a defendant to

be punished for becoming a party to an agreement to facilitate

the commission of substantive offenses, regardless of whether

that defendant is also to be punished for those substantive

offenses themselves. Calabrese, 825 F.2d at 1346. Under

these principles, at the point of entering into an agreement, a

conspirator becomes accountable for all conduct of. the con-

Spiracy, and proof of a slight connection to the conspiracy 1s

sufficient to support such accountability. United States v.

Batimana, 623 F.2d 1366, 1370 (9th Cir.), cert. denied, 449

U.S. 1038 (1980). When one agrees to be a member of a con-

spiracy, one agrees to all acts that have been or will be com-

mitted by the conspiracy, and, by virtue of that agreement, is

responsible for such acts regardless of one’s role in their com-

mission. See id.

[4] Since agreement to participate in the conspiracy occurs

not only at the point of entry into the conspiracy but also on

an ongoing basis until withdrawal or cessation of the conspir-

acy, it does not violate the prohibition against ex post facto

laws to apply the standards that were in effect at the point at

which the conspiracy terminated, in order to punish Inafuku

for conspiracy to distribute the entire amount of contraband

actually involved in the conspiracy. Inafuku continued to

agree to be a party to an operation that had sold over 900

grams of a substance containing methamphetamine as of the

effective date of the statute imposing the ten-year mandatory

minimum, and remained a party to that conspiracy as it sold

more contraband after the statute's effective date, ultimately

passing the 1,000 gram mark. Inafuku failed to disengage

from the conspiracy before the harsher punishment provisions

became effective or before it had sold over 1,000 grams of

contraband. Inafuku thus engaged in conduct punishable

under the mandatory minimum sentence provisions after those

provisions took effect. He is therefore appropriately punished

under those standards.

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Inafuku also challenges the imposition of a $17,500 fine.

He claims for the first time on appeal that the district coun did

not have sufficient evidence to find that he had the ability to

pay the fine. We review for plain error. See United States v.

Lopez-Cavasos, 915 F.2d 474, 479 (9th Cir. 1990). The dis-

trict Court explained the imposition of the fine based upon

examination of his income tax information and co-

conspirators’ statements suggesting that Inafuku had large

sums of money to spend. The district court nevertheless

imposed a fine on the low end of the Guideline range. There

was no plain error.

AFFIRMED.

APPENDIX B

DISTRICT COURTS RULING ON MOTION

TO WITHDRAW PLEA

The district court, on March 28, 1990,

after hearing evidence, made the following

oral ruling on defendant HOWARD INAFUKU's

motion to withdraw plea of guilty:

THE COURT: Under rule 32(D), for

your motion to withdraw the plea, the

defendant has to show a fair and just

reason--generally, withdrawal of a guilty

plea should be permitted if it was induced

by fraus, mistake, imposition, coercion,

deceit, misrepresentation, or defendant's

misapprehension of his legal rights.

The Ninth Circuit said, in the

Caldwel]] case, that "the inconvenience--

the Court and prosecution--resulting from

a chande of plea is ordinarily slight, as

compared with the public interest in

protecting the right of the accused at

trial by jury."

And, in the uck S case, the

Eleventh Circuit set out the following

factors to be analyzed: One, whether

close assistance of counsel was available;

two, whether the plea was knowing and

voluntary; three, whether judicial

resources would be--would be conserved;

four, whether the government would be

prejudiced.

The court has analyzed each one of

those factors, in regard to this case.

There clearly was close assistance of

counsel.

The Court found, at the time the plea

was made--and finds now--that the plea was

knowing and voluntary.

Judicial resources would be

conserved.

The government would be prejudiced--

the question of whether they could

relocate all of their witnesses--although

the Court is not placing a great deal of

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wight on prejudice to the government; the

Court's not sure whether there is any

legal prejudice thee.

Consideration of a motion to withdraw

guilty plea does not involve any question

of guilt of innocence, although, in this

case, the Court does not that Mr. Inafuku

is not asserting his innocence, and that

is a factor that some Courts weigh, in

determining whether or not to allow a plea

withdrawal.

Trial courts should not undertake to

decide the merits of a proffered defense,

although, of course, in this instance, I

don't believe a defense has even been

proffered.

It's really the question of Mr. Minn

arguing whether or not the mandatory

minimum is appropriate, and, also, whether

a defendant is misled by reference to a

higher guideline than is_ absolutely

applicable.

The Ninth Circuit has said, in United

States versus Rio Ortez--or--yes--Ortez--

that defendant's change, in part, is not

sufficient as a fair and just reason for a

withdrawal.

The Court again notes that, in this

case, the objections to the presentence

report, the defendant had considered all

of these arguments and--or, at least, the

mandatory minimum argument--stated that,

after a conscious deliberation, decided

not to challenge then.

The Ninth Circuit did state, in the

Vasquez case, that a general rule is that

a defendant who has entered a guilty plea,

on the advice of competent counsel, will

usually not be permitted to withdraw that

plea.

The court has also reviewed the

Pressly case of this circuit, where a

defendant was allowed to withdraw his

guilty plea; and, there, the court said,

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“appellant's statement, at the time he

attempted to withdraw the guilty plea,

suggests that he may not have understood

that the plea bargaining arrangement

allowed the judge to impose a sentence as

severe as ten years' imprisonment," so the

defendant there didn't realize how severe

a sentence he was exposed to by pleading

guilty. That's no our situation here.

- The proffer of Attorney Young's

testimony was that he reviewed the plea

agreement with the defendant at least

three times; that he instructed the

defendant to read it over and question him

on any points he didn't understand. The

defendant did raise some questions. Mr.

Young explained other provisions. Mr.

Young believed that the defendant

-understood every provision of the plea

agreement.

Mr. Young estimated that the

guideline range might be 37 to 39 level,

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and that one way tiiat the defendant might

lower that would be to cooperate with the

government, but that there would be no

guarantee that the cooperation would lower

the sentence, at all, and he would simply

be relying on the good faith of the

government.

And the Court's questioning of Mr.

Inafuku as to whether he understood the

plea agreement, Mr. Inafuku stated that he

understood the provision in paragraph 9,

to the effect that the entery of the

guilty plea, pursuant to the agreement, is

not based on any understanding of the

defendant that he would fall within a

particular sentencing range, is subject to

any specific provision of the guidelines--

or not be subject to any specific

provision of the guidelines, and also that

there is no promise or guarantee of the

applicability or non-applicability of any

guideline, or any portion’ thereof,

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notwithstanding any representations or

predictions from any source.

The Court believes that Mr. Inafuku

understood that at the time that he made

the guilty plea. The Court has noted the

intelligence evidenced by Mr. Inafuku on

the stand, and Mr. Inafuku also agreed

that the only area of uncertainty in Mr.

Young's advice was with respect to the

guidelines.

The Court finds that Mr. Young's

advice was not incompetent. He admitted

that he wasn't sure what the guideline

sentence was, and that's exactly what the

plea agreement says, that regardless--that

the defendant's not relying on any source

as to what the level of the guideline

sentence might be.

So, for all of the foregoing reasons,

the Court finds that defendant has not met

his burden of showing a fair and just

reason for withdrawal of his guilty plea.

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The Court will deny the motion and ask M.

Peyton to prepare the order.

APPENDIX C

TRANSCRIPT OF SENTENCING IN THE

DISTRICT COURT

After the sentencing hearing on March

30, 1990, the District Court imposed the

following sentence:

THE COURT: Statutory maximum as to

counts one, being a preguideline count is

20 years. The guideline range in this

case, with there being a stautory minimum

of 10 years as to county six, as the Court

has previously found, is 120 to 121

months.

The Court will therefore sentence

you, considering the seriousness of the

crimes involved, as to count one, 10

years; as to counts two, three, four, and

six, 10 years; as to count seven and

eight, 12 months; with all counts to run

concurrently to count one.

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.