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United States v. Gonzalez

United States District Court, W.D. Arkansas, Fayetteville Division

January 5, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
ALBERTO GONZALEZ DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Petitioner's “Successive Motion Under 28 U.S.C. § 2255” filed June 27, 2016. (Doc. 101) The United States filed its response on July 27, 2016. (Doc. 105) Petitioner did not file a reply. The matter is ready for Report and Recommendation.

         I. Background

         On October 31, 2014, a Criminal Complaint was filed against Defendant/Petitioner, Alberto Gonzalez (“Gonzalez”), alleging that on or about the dates of October 24, 2014 through October 30, 2014, Gonzalez conspired to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. 1) Gonzalez made his initial appearance before the Hon. Erin L. Setser, United States Magistrate Judge, on November 4, 2014, where he waived the issues of probable cause and detention. (Doc. 8) Raymond Niblock (“Niblock”), a Criminal Justice Act panel attorney, was appointed to represent Gonzalez. (Docs. 8, 17)

         On November 19, 2014, Gonzalez was named in a two-count Indictment charging him with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (Count One), and with possession of more than 500 grams of a mixture or substance that contained methamphetamine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Count Two). (Doc. 1) Gonzalez appeared for arraignment before the Hon. Erin L. Setser on November 21, 2014, at which time he entered a plea of not guilty to the Indictment. (Doc. 33)

         Niblock requested discovery in open court at the arraignment on November 21, 2014 in anticipation of the Court's Pretrial Scheduling Order (Doc. 35), and on November 25, 2014, he also filed a Notice of Discovery Request (Doc. 37) and Notice for Exculpatory Evidence (Doc. 38) on behalf of Gonzalez. The United States responded to Gonzalez's discovery notices on December 3, 2014. (Doc. 39)

         On January 6, 2015, attorney Robert I. Mandell (“Mandell”) entered an appearance on behalf of Gonzalez (Doc. 44), and on January 9, 2015, Niblock filed his Motion for Withdrawal of Counsel (Doc. 45). A Text Only Order was entered on January 9, 2015 granting Niblock's motion to withdraw.

         On March 12, 2015, Gonzalez appeared with counsel before the Hon. P. K. Holmes, III, Chief United States District Judge, for a change of plea hearing. (Doc. 54) A written plea agreement was presented to the Court, and Gonzalez pleaded guilty to Count One of the Indictment, charging him with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to Count Two of the Indictment, charging him with possession with intent to distribute more than 500 grams of a mixture or substance that contained methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). (Doc. 54; Doc. 55, ¶ 1) The Court accepted the plea and ordered a Presentence Investigation Report (“PSR”). (Doc. 54)

         An initial PSR was prepared by the United States Probation Office on May 12, 2015. (Doc. 64) The PSR determined that Gonzalez was accountable for 1.7 kilograms of actual methamphetamine, and his Base Offense Level was determined to be 36. (Doc. 64, ¶¶ 28, 29, 34) The PSR determined that Gonzalez acted as an organizer, leader, manager, or supervisor in the criminal activity, and a two level enhancement was assessed pursuant to U.S.S.G. § 3B1.1(c). (Doc. 64, ¶¶ 29, 37) After a three level reduction for acceptance of responsibility, Gonzalez's Total Offense Level was determined to be 35. (Doc. 64, ¶¶ 41-43) Gonzalez's criminal history resulted in a criminal history score of 6, placing him in Criminal History Category III. (Doc. 64, ¶ 53) The statutory maximum sentence for Count One, conspiracy to distribute methamphetamine, was 20 years imprisonment. (Doc. 64, ¶ 85) The mandatory minimum sentence for Count Two, possession of more than 500 grams of methamphetamine with intent to distribute, was 10 years imprisonment, and the statutory maximum sentence was life imprisonment. (Doc. 64, ¶ 85) Gonzalez's advisory guideline range was 210 to 262 months imprisonment. (Doc. 64, ¶ 86)

         On June 3, 2015, the Government advised that it had no objections to the initial PSR. (Doc. 69) Gonzalez made numerous objections to the initial PSR on June 3, 2015. (Doc. 70) He objected to the PSR stating that he used the aliases of “Doopey” and “Humberto Gonzalez.” (Doc. 70, p. 1) He objected to the amount of methamphetamine attributed to him and to the enhancement as an organizer, leader, manager, or supervisor of the criminal activity. (Id.) Concerning the quantity of methamphetamine attributed to him, he objected to use of U.S.S.G. § 2D1.1(c)(2), contending that § 2D1.1(c)(3) should have been used instead. (Id.) Based on his objections to the drug quantity and the enhancement for his role in the offense, he also objected to the corresponding offense levels. (Id.) He objected to several aspects of the reporting of his criminal history. (Doc. 70, pp. 1-2) Finally, based on all of his objections, he objected to the advisory guidelines range, which he contended should be 168 - 210 months imprisonment based on a total offense level of 33 and a criminal history category of III. (Doc. 70, p. 2)

         All of Gonzalez's objections were rejected by the U.S. Probation Officer, and no changes were made to the PSR. Concerning Gonzalez's objection to the drug quantity attributed to him, the U.S. Probation Officer noted Gonzalez pleaded guilty to possession with intent to distribute more than 500 grams of methamphetamine; that the factual basis section of the plea agreement specifically indicates that 1, 716 grams (1.7 kilograms) of pure methamphetamine were seized in this case; and, that Gonzalez advised the Court during the change of plea hearing that the information set forth in the stipulation of facts section of the plea agreement was true. (Doc. 73-1, p. 2) Regarding the two-level enhancement for Gonzalez's role in the offense, the U.S. Probation Officer summarized Gonzalez's activities in arranging for the meth to be transported from California to Northwest Arkansas; his knowledge of the quantity of meth to be transported and the details of the transportation; his agreement to pay the individual who actually transported the meth; his directions to the CI to get a hotel room for him and his associates, and when and where to pick him up; and, his statement to the CI that he planned to set up a drug trafficking business in Northwest Arkansas. (Id.) Such activities, the U.S. Probation Officer concluded, supported the two-level enhancement for being an organizer, leader, manager, or supervisor in the offense. (Id.) A final PSR was submitted to the Court on June 9, 2015. (Docs. 73, 73-1)

         Mandell filed a Sentencing Memorandum on July 14, 2015, in which he argued for a downward departure from the advisory guidelines range based on the sentencing factors set forth in 18 U.S.C. § 3553(a). (Doc. 82)

         Gonzalez appeared for sentencing on July 29, 2015. (Doc. 85) The Court made inquiry that Gonzalez was satisfied with his counsel, reviewed the PSR, and afforded Gonzalez and his counsel an opportunity to make a statement to the Court. The Court imposed a below-guidelines sentence of 140 months imprisonment on Count One and Count Two, to run concurrently; three years supervised release on Count One, and five years supervised release on Count Two, to run concurrently; no fine; and, the Court imposed $200.00 in special assessments. (Doc. 85) Gonzalez was advised of his right to appeal the sentence imposed. (Id.) Judgment was entered on July 30, 2015. (Doc. 87)

         In its Statement of Reasons, the Court explained that it varied downward from the guidelines range due to the factors set forth in 18 U.S.C. § 3553(a), specifically, the nature and circumstances of the offense, the history and characteristics of the defendant, the seriousness of the offense and the need for just punishment, to afford adequate deterrence, to protect the public, and to avoid unwarranted sentencing disparities. (Doc. 88, p. 3) Based on all of these factors, ...


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