to Leyva's benefit.

2. Even apart from any such essentially strategic
judgment, which tends to negate any claim of
constitutionally insufficient representation by counsel, the
government had Leyva dead to rights on his major involvement
in dealing between 15 and 50 kilograms of cocaine (something
that Leyva confirmed both in Plea Agreement §5 and in his

oral acknowledgment at the time this Court took his guilty

plea). Under the conspiracy provisio. 21 U.S.C. §846

and its incorporation of the provisio: 21 U.S.C. 841(a
and (b) (1) (A) (ii), Leyva's involvement with a far smaller
amount~-at least five kilos--triggered a mandatory minimum
imprisonment of ten years. That mandatory minimum trumped
the lower part of the Guideline range applicable to offense
level 31, and 120 months was in fact the custodial sentence
imposed by this Court. And that being the case, any attempt
at an appeal from that sentence (after Leyva had
acknowledged his guilt and had confirmed that he was
pleading guilty voluntarily) would have been totally
frivolous.

In summary, then, Leyva cannot tar Meczyk with the brush of
constitutionally inadequate representation just because the plea

agreement contained a waiver of appellate rights. In part Leyva

is factually incorrect in that respect, and in its totality



Section 2255 waiver was involved.’ After that had been fully
explored and specifically explained to Leyva, he confirmed that
he understood the potential right to appeal that he was giving up
and affirmatively said he was doing to voluntarily.

Leyva also says that he did not get anything of value in
exchange for his waiver of appeal, because the three level
reduction in the Sentencing Guidelines offense level (Guideline
§§3E1.1(a) and (b)) is something that he would have received in
all events (if for example he had entered a blind plea). But
there are two responses that torpedo that ccntention:

1. Under Plea Agreement 415 the government agreed to
recommend that Leyva be sentenced at. the low end of the
applicable Guideline range (or, if higher, the statutory
mandatory minimum sentence). By contrast, in a blind plea
the United States could make whatever recommendation for a
higher sentence that it considered appropriate. Although
such recommendations do not of course bind the sentencing
court, Meczyk could appropriately have considered the

desirability of obtaining such a recommendation as operating

+ This Court is one of several judges in this District

Court who will not accept a plea agreement that contains a
Section 2255 waiver, both because such a provision places counsel
in a conflict-of-interest position if he or she recommends such a
waiver that gives up a defendant's right t2 challenge the
constitutional adequacy of the lawyer's representation and
because a defendant's forfeiture (as contrasted with the knowing
waiver) of other constitutional rights that might be enforceable
via Section 2255 can be problematic.

3



Leyva's complaint on that score is legally unsound.

Leyva's Sentencing

Like so many criminal defendants (and, indeed, some lawyers)
who misunderstand the holding in and effect of the Supreme

Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

Leyva also attempts to lay at Meczyk's dooratep a charge of
ineffective assistance of counsel because Meczyk assertedly
failed to challenge the determination of the quantity of drugs
ascribable to Leyva at sentencing, rather than having that matter
determined by a jury. That position is so fundamentally unsound
that only a brief explanation is required to reject it.

As stated in the preceding section of this opinion, Leyva's
mandatory minimum sentence kicked in once he was found to have
been involved with at least five kilos of cocaine. But by his
very entry into the plea agreement, including its waiver of jury
trial (something that he expressly confirmed during the change-
of-plea hearing after this Court had engaged in a painstaking
explanation of everything involved in such « trial and of the
effect of Leyva's waiving that right), Leyve himself has taken
Apprendi out of play--see such cases as United States v. Parker,
245 F.3d 974, 977 and the numerous cases cited there; and see

also such cases as United States v. Wallace, 276 F.3d 360, 369

(7 Cir. 2002) and cases cited there, from. which latter

authorities the result here really flows a fortiori.



ite Owder Fann 5197

TNL jnited States District Court, Northern District of Ilinois
—
Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Jucge
CASE NUMBER 02 C 6313 DATE 9/12/2002
CASE USA vs. Jacobo Leyva
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plait
of the motion being presented.]

MOTION:

defendant, 3rd party plaintiff, and (b) state briefly the nature

DOCKET ENTRY:

(ty Qa Filed motion of [ use listing in “Motion” box above.]

(2) ao Brief in support of motion due _

(3) a Answer brief to motion due____.. Reply to answer brief due.

(4) Qa Ruling/Hearing on ____ set for at

6 oO Status hearing[held/continued to] (set for/re-set for] on ___ set lor _at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on set fort :

(7) oO Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continuedto| at

(9) oO This case is dismissed [with/without] prejudice and without cost:[by/agreement/pursuant to]

QFRCP4(m) CE Local Rule 41.1 OOFRCP41(a)(i) =O FRCP41(a)(2).

(0) a [Other docket entry] Enter Memorandum Opinion and Order, As phrased in Section 2255 Rule
4(b), “it plainly appears from the face of the motion. . . and the prior proceedings in the case that the
movant is not entitled to relief in the district court.” That being so, Section 2255 Rule 4(b) calls for the
summary dismissal of the motion, and this Court so orders. (1-1)

(1) ff (For further detail see order attached to the original mirute order. |

No notices required, advised in open court : Document
Number
No notices required i umber of notions
a | Notices mailed by judge’s staff: SEP ] 3 2002
Notified counsel by tetephone. ‘a docketed
Docketing to mail notices. .
Mail AO 450 form yer . Cs wy deputy initials
Copy to judge/magistrate judge °
pause date mated notice
courtroom, a 1 i
SN deputy’s SN
initials
Date/time received in
central Clerk's Office _ mailing deputy initials



Because the Apprendi principle does not enter into Leyva's

case at all, he cannot charge Meczyk with ineffective assistance
by reason of any asserted failure to challenge the determination
of the drug quantity at sentencing (indeed, the drug quantity was
properly determined at the time of Leyva's guilty plea, rather
than at the later date when he was sentenced). That aspect of
Leyva's current attack is also fatally flawed.
Conclusion
As phrased in Section 2255 Rule 4(b), “it plainly appears

from the face of the motion...and the prior proceedings in the

case that the movant is not entitled to relief in the district
court.” That being so, Section 2255 Rule 4'b) calls for the

summary dismissal of the motion, and this Court so orders.

Milton I. Shadur
Senior United States District Judge

Date: September 12, 2002


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

No. 02 C 6313
(00 CR 781-1)

Vv.

JACOBO LEYVA,

UOCKETED

)
)
)
)
)
a]
} SEP 1 3 20g

Defendant.

MEMORANDUM OPINION AND OxDER

Jacobo Leyva (“Leyva”) has filed a self-prepared 28 U.S.C.
§2255 (“Section 2255”) motion, in which he seeks to upset his
conviction and sentence based on the assertedly ineffective
assistance provided by his lawyer Ralph Meczyk (“Meczyk”) in
connection with Leyva's guilty plea and ensuing sentencing.
Because this Court recalled the circumstances of both of those
proceedings well, and because that recolleczion had indicated
Leyva's current contentions to be wholly devoid of merit, this
Court has listened to the transcript of each proceeding to see
whether the current motion could be resolwed without the need to
order any response from Meczyk or from government attorneys Duane
Deskins and Sean Berkowitz (see Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District Courts
(“Section 2255 Rules”)). As this memorandum opinion and order
reflects, that has indeed proved to ke the case.

Leyva's Guilty Plea

On July 13, 2001 Leyva changed his eazlier plea of not


guilty to a guilty plea as to Count One (a conspiracy count
charging distribution and possession with intent to distribute
substantial quantities of cocaine) pursuant to a written plea
agreement. Because Leyva's primary (if net sole) language is
Spanish, this District Court's extraordinarily able interpreter
Kevin DeVany was also present and provided simultaneous English-
to-Spanish and Spanish-to-English translation. This Court
followed its invariable practice of engaging in a meticulous
point-by-point inquiry to make sure that Leyva understood each
question, that he was proposing to enter his guilty plea both
voluntarily and with full knowledge of the rights that he would
give up by pleading quilty and that--by describing his criminal
involvement in his own words--he was acknow..edging that he was in
fact guilty of the charge at issue.

Nonetheless Leyva now claims that the waiver of appeal
contained in the plea agreement (Agreement 12) tainted his plea
because Meczyk had improperly allowed him to give up those
appellate rights. In part the current motion contains an
important mischaracterization of the plea agreement: Leyva
asserts at page 2 of his motion that it included a waiver of “the
filing of a petition pursuant [to] 28 U.S.C. §2255, §2241 or any
other post-conviction motion or petition.” Not only was that not
true at all, but in fact this Court's detailed questioning

expressly elicited a confirmation from government counsel that no