Judgment was entered against Mr. Perez on December 5, 2001, and on
December 13, 2001, Mr. Perez filed his notice of appeal. His
conviction and sentence were affirmed. United States v. Gonzalez,
319 F.3d 291 (7% Cir, 2003).
Analysis

Defendant‘s first asserted ground for his Section 2255 petition
is ineffective assistance of both of his lawyers in representing him
before trial in failing to file a motion to suppress in connection
with the stop that ied to his arrest and the subsequent consent.
The asserted basis for the stop was that defendant was driving a
mere four miles an hour over the speed limit. Defendant’s co~
defendants argued that defendant must have been stopped as a result
of racial profiling (defendant is Hispanic) because of the
unlikelihood that anyone would be stopped for such a minor deviation
from the speed limit. But as the Court of Appeals held in the
appeal of Mr, Perez’ co-defendants, they had no standing to assert
defendant's constitutional rights. United States v. Gonzalez, 319
F.3d 291, 295-96 (7** Cir. 2003). In this motion, Mr. Perez does
not argue that his attorneys should have based a motion to suppress
on racial profiling. He argues, instead, that his earlier attorneys
were remiss in failing to bring a motion to suppress to determine
if Mr. Perez was actually driving four miles over the speed limit
and to determine whether he actually consented to the search of his

vehicle,



benefit of his plea agreement. At the hearing on his blind plea,
he was told that he was facing a mandatory minimum sentence of ten
years, and that the statutory sentence could be life in prison. At
that hearing I also commented that his minimum sentence under the
circumstances under the Guidelines was going to be at least double
what he would have received under his earlier plea agreement. While
it is unclear whether Mr. Diamond-Falk warned Mr, Perez of the
possible consequences of not testifying truthfully before or after
his blind plea, Mr. Perez was told at the time of his plea that if
he testified falsely during the plea, he could be prosecuted for
making false statements. Neither the government, Mr. Perez’
counsel, nor I were required to anticipate at that time that Mr.
Perez might be intending to lie at trial, and therefore to warn him
that despite his guilty plea he might not obtain acceptance of
responsibility and receive additional points for obstruction of
justice. Mr. Perez was told by me during his plea (during both of
them) that he had a choice of going to trial and that if he did his
testimony could not be compelled.

Mr. Perez argues that his constitutional rights were violated
by my refusal to give him a downward departure based on his earlier
cooperation. This issue has already been raised by him in his
direct appeal and was rejected by the Seventh Circuit. He cannot
reargue it here. At the time of Mr. Perez’ sentence and appeal, the

Sentencing Guidelines were believed mandatory. Unless the Seventh

10


Unfortunately for Mr. Perez, he chose not to stick to his
agreement. Whether because he had been threatened (which he denied
at trial but which he claimed in a meeting with the Assistant United
States Attorneys in this case), or for some other reason, he
declared his intention not to testify at trial, resulting in his
losing the benefit of the plea agreement discussed above. Mr.
Perez’ second counsel, Nathan Diamond-Falk, testified at the
evidentiary hearing in this matter. Mr. Diamond-Falik, of course,
had every reason to pursue a motion to suppress if there was any
likelihood that he could prevail. At the hearing, it appeared that
Mr. Diamond-Falk had not considered a motion to suppress the stop
ef the truck itself, although he considered and rejected (rightly,
as discussed above) a challenge based on lack of consent to search.
As explained above, a motion to suppress based on the argument that
Mr. Perez was really not going 59 m.p.h. where the speed limit was
55 m.p.h. was not likely to be successful. Since Mr. Perez did not
raise the question of racial profiling, he has waived any argument
that Mr. Diamond-Falk should have brought a motion to suppress on
this ground.?

Mr. Perez also argues ineffective assistance of counsel in
failing to advise Mr, Perez that he did not have to testify at the

trial of his co-defendants. As it turned out, Mr. Perez would have

1 Counsel testified at any rate that he did not think he
would prevail on this ground because Mr, Perez is light skinned
and does not look Hispanic.


The failure of Mr, Perez’ initial attorney to bring a motion
to suppress is understandable, Mr, Perez signed a consent form soon
after being stopped and thereafter cooperated. He would not likely
prevail on an argument that he had not consented to the search.
Present counsel does not provide any argument as to why Mr. Perez
would have been likely to prevail on the argument that police were
lying as to the speed Mr. Perez’ truck was going at the time state
police decided to pull him over. In his affidavit attached to his
section 2255 motion he does not say he was not driving over the
speed limit at the time he was stopped. (He does make this claim
in testimony that I heard in connection with his motion, but his
testimony in general was not credible, and never before had he made
this claim.) But apart from the unlikelihood that he would have
prevailed on this claim in a motion to suppress filed by his first
attorney, Mr. Perez’ first attorney had a very good reason for
deciding not to pursue this route. By the time she met Mr. Perez,
he had already cooperated with the government, and the government
had conclusive evidence that Mr. Perez had transported cocaine in
his truck, In exchange for an agreement to cooperate at the Grand
Jury and at trial, she was able to negotiate a sentence of one half
of what he would have received under the Sentencing Guidelines.
Under the circumstances, this was a very good result for Mr. Perez.
His first counsel’s performance cannot be faulted under Strickland

v. Washington, 466 U.S. 668 (1984).



blind plea, the government again stated its intention to immunize
Mr. Perez following his plea “forcing him to testify at the trial
of his co-defendants....” Tr., January 26, 2001, at 12. Mr.
Diamond-Falk had discussed the immunity waiver with Mr. Perez and
had told him the government was prepared to compel his testimony.
If Mr. Perez declined to testify when called, the government would
have tendered the grant of immunity to me, and compelled Mr, Perez’
testimony. It was unnecessary because Mr. Perez testified without
it. There is no reason to believe that if Mr. Perez had testified
under the grant of immunity (which would have protected only
truthful statements), the outcome would have been any different.
Mr, Perez next argues that his blind plea was not entered
knowingly and intelligently. Basically, he argues that he did not
fully comprehend that instead of the 60 to 73 months sentence that
he was giving up, because of the “vindictiveness” of the United
States and this court, he could receive the sentence that he did
receive of 235 months in custody. Mr. Perez is correct that the
Guidelines sentence he received is very long. But Mr. Perez was
well advised that he could receive such a sentence if he decided not
to cooperate and then lied at trial. By not cooperating he was at
the very least giving up what had not been a right, but had been
agreed, of a sentence between 50 and 66% of the Guidelines sentence.
In testimony before me, Mr. Perez admitted that his first attorney

told him if he refused to cooperate he would be giving up the



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

UNITED STATES OF AMERICA,
Plaintiff,
No. 04 € 3236

Vv.

DAVID PEREZ,

Defendant
MEMORANDUM OPINION AND ORDER

David Perez moves the court pursuant to 28 U.S.C. § 2255 to
vacate his sentence for possession of 128 kilograms of cocaine, In
United States v. Gonzalez, 319 F.3d 291 (7th Cir. 2003), Mr.
Perez’s conviction and sentence were affirmed. On this motion Mr.
Perez alleges that: (1) his court appointed attorneys, in violation
of his Sixth Amendment right to effective assistance of counsel,
failed to pursue a motion to suppress evidence and failed to inform
him of his #ifth Amendment privilege against self-incrimination
when he testified at the trial of his co-defendants; (2) his entry
of a blind plea was not made knowingly and intelligently; and (3)
in imposing his sentence the court violated his right to
substantive due process by refusing to grant him a downward

adjustment for acceptance of responsibility. I deny the motion.


Circuit decides that this Court has discretion to reconsider
sentences that were final before the Supreme Court’s decision in
United States v. Booker, 125 §.Ct. 738 (2005), I cannot reconsider
his sentence using the Sentencing Guidelines as a discretionary
guideline.

For the reasons stated in this opinion, Mr. Perez’ § 2255
motion is denied.

ENTER ORDER:

Buz 2 Buhl

Elaine £. Bucklo
United States District Judge

Dated: August le. 2006

11



been better off not pleading guilty, and going to trial, so long as
he did not testify at all. His Guideline offense level would have
been 36, rather than the 38 he received following his perjured
testimony. If he had gone to trial, the government could not have
forced his testimony. But instead Mr. Perez replaced his earlier
cooperation plea with a blind plea, and he was called as a witness
to testify despite the fact that he had said he would not testify
against his co-defendants. And then he lied. At the time of his
testimony, Mr. Diamond-Falk was in the courtroom.
Mr, Diamond-Falk was questioned regarding what he had told
Mr. Perez prior to his testimony. He says, and I find this
testimony credible, that he told Mr. Perez that if he testified he
had better testify truthfully, and that if he did not his sentence
could be increased,
Mr. Perez argues that his counsel did not tell him that he had
not waived his privilege against self incrimination by his guilty
plea. Mr. Diamond-Falk admits that he did not tell him this because

Mr. Diamond-Falk did not realize that the privilege is not waived

until after judgment is entered following sentencing. Mitchell v.

United States, 526 U.S. 314 (1999). In this case, however, the
error was harmless. The government had already prepared, obtained
signed permission from the appropriate U.S. Department of Justice

officials, and tendered to defendant and his counsel a grant of

immunity compelling Mr. Perez’ testimony. At the hearing on his


On January 30, 2001, Mr. Perez was called by the government as
a trial witness in the trial of his co-defendants. He testified
that his plea agreement had been revoked because he no longer
wanted to testify or cooperate with the government, Mr. Perez
testified unhesitatingly about his own involvement in the offense
but claimed repeatedly that he could not recall facts relating to
his co-defendants. He could not identify them and also denied
recollection of statements he had made to the grand jury. He also
testified categorically that no one had ever threatened him.

On October 3, 2001, while sentencing issues were under
consideration, Mr. Perez filed a motion to withdraw his second
guilty plea on the grounds that he had not been competent to stand
trial and that the plea had not been made knowingly and
voluntarily. He also argued that his counsel had never advised him
“that he had a high probability of success on a motion to suppress
the evidence recovered during the traffic stop.” The motion was
denied,

On October 19, 2001, Mr. Perez made a motion for a downward
adjustment from the Sentencing Guidelines on the basis of his
acceptance of responsibility. I denied that motion, agreed with
the government that Mr. Perez should receive two points for
obstruction of justice, and on November 30, 2001, sentenced Mr.
Perez to 235 months of incarceration, the minimum level under the

Sentencing Guidelines, which were then understood to be mandatory.



Forbes to withdraw her appearance and granted Nathan Diamond-Falk
leave to file his appearance as Mr. Perez’s substitute counsel,
Mr. Perez initially pleaded guilty to possession of a
controlled substance pursuant to a plea agreement conditioned on
his cooperation in the prosecution of his co-defendants. However,
a few weeks before the trial of his co-defendants, both the
government and Mr. Perez moved to withdraw the plea. I permitted
him to withdraw his original plea and enter a plea of guilty that
was not based on an agreement with the government. In so doing, I
first interrogated Mr. Perez as to whether his second plea was made
knowingly and willingly. He assured me that it was. I also
explained to him the possible consequences of pleading blind, In
the same hearing, the prosecutor summarized what the government’s
evidence would be with respect to Mr. Perez if his case were tried;
among other things, that Mr. Perez had consented to a search of the
truck, the trailer and its contents. I asked Mr. Perez if the
statements made by government counsel were true, and he answered,
yes. I also advised Mr. Perez that if he pleaded guilty, he would
be waiving his right to a jury trial in which he could not be
compelled to testify, and if he elected not to testify, no adverse
inference could be drawn from that fact. Mr. Perez testified that
he wanted to accept responsibility for what he had done and

persisted in his change of plea,



Factual and Procedural Backgound

On March 24, 2000, Mr, Perez was driving a trailer~-truck
loaded with watermelons when he was stopped by the Illinois State
Police for driving four miles an hour over the posted speed limit.
Mr. Perez was asked for and gave consent to search the truck and
tractor in the presence of three Illinois State Police officers,
ten to 15 minutes after he was stopped. At that point, a fourth
Illinois State Policeman arrived with a drug sniffing dog. The dog
alerted to both the truck and the trailer. An irregularity was
then perceived in the rear wall of the truck, and Mr. Perez agreed
to drive the truck into a towing facility in Effingham, Illinois
where the police could take a closer look at the rear wall area.
Once at the facility, Mr. Perez also was asked to consent to the
removal of a piece of thin sheet metal, and again gave his consent.
Cacaine was found stored in a compartment that had been concealed
in the rear wall of the cab. Mr. Perez was taken into custody and
read his constitutional rights, He cooperated in a delivery of the
cocaine to others who were charged and found guilty after a jury
trial.

The criminal complaint in the underlying case was filed on May
26, 2000. On that date attorney Micky Forbes of the Federal
Defender Program was appointed to represent Mr. Perez. Mr. Perez
filed a motion on December 11, 2000 to dismiss Ms. Forbes as his

attorney. On December 15, 2000, the court granted leave to Ms.