United States District Court, D. Minnesota
Thomas M. Hollenhorst, Assistant United States Attorney, Counsel for Plaintiff.
Stephen N. Preziosi, Law Office of Stephen N. Preziosi, Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant Joseph Earl Herrera's Motion Motion to Reinstate Notice of Appeal. [Docket No. 75]
On May 11, 2011, an Indictment was filed in the District of Minnesota charging Defendant Joseph Earl Herrera in a drug conspiracy case. [Docket No. 7] Defendant was indicted on Count 1, Conspiracy to Distribute Cocaine. On June 27, 2011, Defendant pled guilty to conspiracy to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. [Docket Nos. 20, 21]
The Guideline Range represented in Defendant's plea agreement was 120 to 135 months. (See Plea Hr'g Tr., Docket No. 69, at 6.) The parties also anticipated a two-level increase for the Defendant's possession of a firearm and a three-level reduction for acceptance of responsibility, "predicated on [Defendant] complying with various conditions and testifying truthfully and undertaking no other action that would be inconsistent with acceptance." (Id. at 5.)
After the plea, Defendant obtained methamphetamine from a person named "Rene." (See Sentencing Tr., Docket No. 70, at 8-10.) Defendant maintains that this incident was an act made to cooperate with the Government, and that he called the Government before and after participating in the drug transaction to inform them of his plans. (See Att'y Aff., Docket No. 76, at 5-6.) Defendant argues that the incident was a misunderstanding, and that he was not actually attempting to break the law but rather was trying to assist the Government by helping to implicate Rene in the crime. (Id. at 19.)
At the January 17, 2012 sentencing hearing, Defendant requested application of the three-level acceptance of responsibility reduction to calculate his base offense level. (See Sentencing Tr., at 10-12.) After considering the arguments from the parties, the Court determined that the reduction did not apply and that the applicable Guidelines were as follows:
Total Offense Level: 36 Criminal Category: I Imprisonment Range: 188 to 235 months Supervised Release: 5 years Fine Range: $20, 000 to $10 million Special Assessment: $100
On January 17, 2012, the Court sentenced Defendant to a term of 188 months, at the low end of the Guideline range, followed by five years of supervised release. (Id. at 25-26.)
Petitioner's attorney, John J. Leunig, filed a timely Notice of Appeal on behalf of Defendant on January 27, 2012. [Docket No. 56] On the same day, Leunig filed a motion to withdraw as Defendant's attorney, both with this Court and with the Eighth Circuit [Docket No. 57]; however, the Eighth Circuit issued an order on February 22, 2012 denying the motion to withdraw [See Docket No. 61]. On March 16, 2012, Defendant filed a motion for voluntary dismissal of his appeal, stating that "I, Joseph Earl Herrera, after consulting with my attorney and my family, and considering all the circumstances involved, hereby ...