conviction to secure the three point sentencing deduction for
admission of responsibility. See id. at *2. The defendant
essentially argued that had he known that the Government was
required to prove his prior conviction beyond a reasonable doubt
before a jury, as Booker subsequently determined, he would have
made a different strategic decision pertaining to his plea
agreement. See id.

Judge Zagel denied defendant’s motion to withdraw the guilty
plea, noting that “this is a case about the effects of an after-
plea change in law that, arguably, might change the calculus the
defendant would use to plead guilty and not a case about the
propriety of admonitions, [and] it becomes clear that there is no
fair or just reason to permit withdrawal.” Id. at *3. Judge Zagel
also distinguished the Seventh Circuit case of Gomez-Orozco, where
a defendant was permitted to withdraw a plea only because it was
clear that intervening circumstances made it such that the
Government may have had no case against the defendant, rather than
simply a weaker case or a more difficult time proving a fact. See
id. at *4, citing United States v. Gomez-Orozco, 188 F.3d 422 (7th
Cir. 1999). Finally, Judge Zagel noted that the defendant had not
made any attempt to demonstrate “palpable prejudice,” as there was
“no claim that the prior conviction and sentence could not be

conclusively proven beyond any reasonable doubt.” Id.


himself of a three-point reduction in offense level for acceptance
of responsibility.” Def. Reply Br. at 9 5.

The Government first responds by arguing that the issue of
past convictions is the type of factual question that escapes the
purview of Booker and Blakely. Moreover, even if this issue falls
under the intervening cases, the Government contends that Rodriguez
admitted all the pertinent facts of the prior conviction beyond a
reasonable doubt in his plea agreement.

The Court need not determine the thorny issue of whether the
prior conviction determination falls under the Booker and Blakeley
case law because there is recent and persuasive authority in this
District that indicates Rodriguez’s Motion must fail. on
September 1, 2004, Judge James B. Zagel issued an opinion that is
precisely on-point to the present situation. See United States v.
Reyes~Acosta, 2004 WL 1963753 (N.D. Ill. 2004). In Reyes-Acosta,
the defendant entered a plea of guilty to an indictment alleging
that he was an alien who had illegally re-entered the country. See
id. at 1. In the plea agreement, the defendant admitted a prior
conviction of an aggravated felony related to a drug offense, but
- unlike the situation here ~ the indictment did not include
mention of an aggravated felony. See id.

Following the decisions of Blakely and Booker, the defendant
in Reyes-Acosta filed a motion to withdraw his guilty plea under

the theory that he was “forced” to admit to the facts of his prior


The situation here is virtually indistinguishable from that in
the recently-decided Reyes-Acosta case. Here, Rodriguez makes no
complaint of the Rule 11 colloquy. He also makes absolutely no
argument that the prior conviction that he admitted in his plea
agreement could not be proved beyond a reasonable doubt. The stark
reality here is that in his plea agreement Rodriguez admitted the
following facts “beyond a reasonable doubt”: (1) prior to
deportation, he was convicted of an aggravated felony by pleading
guilty to First Degree Sale of a Controlled Substance in the Second
Judicial District Court in St. Paul, Minnesota, and (2) he was
sentenced to 86 months in prison, which was stayed pending his
completion of one year at the Ramsey County Workhouse. See Gov.
Resp. Br., Ex. Bat 4 5 (Plea Agreement). Thus, Rodriguez admitted
facts under the proper standard of proof that squarely place him
under the sentence enhancement of U.S.S.G. § 2L1.2(b) (1) (B). His
sole contention is that intervening case law might have changed the
calculus of his plea decision. This is not a sufficiently fair and
just reason to withdraw his plea. See Reyes-Acosta, 2004 WL
1963753 at *4,

As a final note, Rodriguez also argues that his Motion should
be granted because the plea agreement is “filled with legally false
statements,” such as the parties’ acknowledgment that the Court
would ultimately determine the facts relevant to sentencing and

other issues that Blakely and Booker subsequently called into


Minute Order Foren (06/97)

United States District Court, Northern District of Illinois

me ol ie Te ej iting Judge if Other
Nr Magitrateduage | HlamtyD.Leinenweber | Shanassigned Judge
CASE NUMBER 03 CR 1041 DATE 9/16/2004
CASE United States of America vs. Baldemar Rodriguez-Rodriguez
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

(65) ao Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

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

(4) a Ruling/Hearingon eset fort

(5) oO Status hearing[held/continucd to] [set for/re-set for] on setfor_ at

(6) a Pretrial conference[held/continued to] [set for/re-set for] on setfor__—at__

(7) a Trial[set for/re-set for] on_at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to__—__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CUFRCP4(m) OlLocal Rule 41.1 CIFRCP41(a)(1) CFRCP41(a)(2).

(0) «lf [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Rodriquez’s Motion

to Withdraw Guilty Plea is DENIED. Sentencing date set for October 5, 2004 at 9:45 a.m.

al)

No notices required, advised in open court

[For further detail see order attached to the original minute order.]

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

V | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
WAP deputy's

initials [—

‘Date/time received in
central Clerk's Office

mailing deputy initials



question. This, however, does not alter the fact that Rodriguez
fully admitted to a prior conviction for aggravated felony. And
Rodriguez provides no authority for the proposition that certain
inaccuracies in a plea agreement, caused by subsequent law, render
the entire plea agreement null and void. Accordingly, this
argument fails.
III. CONCLUSION

For the foregoing reasons, Rodriguez’s Motion to Withdraw

Guilty Plea is DENIED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: ZF 4



IN THE UNITED STATES DISTRICT court" | U Ee i»)
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION SEP 1 6 2004
JUDGE HARRY D, LEINENWEBER
UNITED STATES OF AMERICA, U.S. DISTRICT COURT JUDGE
Plaintiff, Case No. 03 CR 1041
v.

Hon. Harry D. Leinenweber
BALDEMAR RODRIGUEZ-RODRIGUEZ,

Tighe
Defendant. Dog: (ever
tag ER

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Defendant Baldemar Rodriguez-Rodriguez’s
(hereinafter, “Rodriguez”) Motion to Withdraw Guilty Plea. On
December 2, 2003, the Government filed a one-count indictment
charging Rodriguez with illegally re-entering the United States, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b) (2). On April 1, 2004,
Rodriguez pled guilty to re-entering the United States after having
been deported following a conviction for an aggravated felony in
violation of 8 U.S.C. §§ 1326(a) and 1326(b) (2). Rodriguez’s plea
agreement included an admission that certain sentencing
enhancements under United States Sentencing Guideline (the
“U.S.S.G.”) § 2L1.2, notably, a prior aggravated felony conviction
on a drug possession charge, applied to his offense. Specifically,
Rodriguez admitted in his plea agreement that he had previously

pled guilty to First Degree Sale of a Controlled Substance in


Minnesota, and was sentenced to 86 months in prison, which was
stayed pending completion of one year at a county workhouse.
Rodriguez now moves to withdraw his guilty plea on the grounds
that the recent decisions of Blakely v. Washington, 124 S.Ct 2531
(2004) and United States v. Booker, 375 F.3d 508 (7th Cir. 2004)
have created a fair and just reason to question whether his plea

agreement was “knowingly entered into.”

For the following reasons,
the Court denies Rodriguez’s Motion.
II. DISCUSSION

Under Rule 11 of the Federal Rules of Criminal Procedure,
Rodriguez must show that there is a “fair and just reason” to allow
him to withdraw his guilty plea. See United States v. Roque-
Espinoza, 338 F.3d 724, 726 (7th Cir. 2003). Rule 11 provides only
a “narrow escape hatch from a plea entered following a proper
Rule 11 colloquy.” Id. The crux of Rodriguez’s argument is that
the intervening Blakely and Booker decisions “altered the reasons”
for Rodriguez's admission of a prior drug offense conviction and
his willingness to enter into the plea agreement. Specifically,
Rodriguez argues that he did not “knowingly” enter into the plea
agreement because he was under the impression that the Government
only needed to prove his past conviction to a judge under a
preponderance of the evidence standard. In addition, Rodriguez

claims that he “had to admit these sentencing facts to ensure