United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
the Court is the Defendant/Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody filed on February 5, 2018.
(ECF No. 38). The United States filed its response on March
6, 2018. (ECF No. 42). Defendant/Petitioner filed a reply on
March 22, 2018. (ECF No. 43). The matter is ready for report
5, 2013, an Indictment was filed alleging that
Defendant/Petitioner, Mauro Gonzales
(“Gonzales”), did knowingly and intentionally
combine, conspire, confederate and agree with others to
distribute a controlled substance, namely, a mixture or
substance that contained methamphetamine, a Schedule II
controlled substance, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 846. (ECF No. 1). After being
arrested in the Northern District of Texas on September 14,
2016, Rule 5 proceedings were conducted on September 28,
2016, and Gonzales was ordered to be detained and transported
to appear before this Court. (ECF No. 6).
made his initial appearance before the Hon. Erin L. Setser
(now Wiedemann), United States Magistrate Judge, on October
24, 2016, where he waived the issue of detention. (ECF No.
8). Patrick F. Flake, a Criminal Justice Act panel attorney,
was appointed to represent Gonzales. (ECF No. 8 and Text Only
Order entered October 24, 2016). Retained counsel, Steven H.
Kay, entered an appearance on behalf of Gonzales on October
31, 2016 (ECF No. 12), and the Court permitted Mr. Flake to
withdraw (Text Only Order entered November 2, 2016).
February 6, 2017, Gonzales appeared with counsel before the
Hon. P. K. Holmes, III, Chief United States District Judge,
for a change of plea hearing. (ECF No. 17). A written Plea
Agreement was presented to the Court, and Gonzales pleaded
guilty to the one count Indictment charging him with
conspiracy to distribute methamphetamine. (ECF No's. 17,
18). The Court approved the Plea Agreement and ordered a
Presentence Investigation Report (“PSR”). (ECF
initial PSR was prepared by the United States Probation
Office on May 5, 2017. (ECF No. 19). On May 12, 2017, the
Government advised that it had no objections to the PSR. (ECF
No. 20). On May 19, 2017, Gonzales advised that he had no
objections to the PSR. (ECF No. 22).
25, 2017, a final PSR was submitted to the Court. (ECF No.
23). The final PSR determined that Gonzales was accountable
for 2, 052.8 grams of actual methamphetamine and 3, 360 grams
of a mixture of methamphetamine, which all converts under the
Guidelines to a total of 47, 776 grams of marijuana
equivalent. (ECF No. 23, ¶¶ 35-38). Based on that
drug quantity, Gonzales' Base Offense Level was
determined to be 36. (ECF No. 23, ¶ 43). This was
increased four levels for Gonzales' aggravating role in
the offense as an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive (Doc. 23, ¶¶ 38, 46), resulting in an
Adjusted Offense Level of 40 (ECF No. 23, ¶ 48). After a
three-level reduction for acceptance of responsibility,
Gonzales' Total Offense Level was determined to be 37.
(ECF No. 23, ¶¶ 50-52). Gonzales had a criminal
history score of zero, placing him in Criminal History
Category I. (ECF No. 23, ¶ 60). The statutory maximum
term of imprisonment for the offense of conviction is 20
years. (ECF No. 23, ¶ 83). Based upon a Total Offense
Level of 37 and a Criminal History Category of I,
Gonzales' advisory Guidelines range was determined to be
210 to 262 months imprisonment; however, since the
statutorily authorized maximum sentence of 20 years is less
than the maximum of the Guidelines range, the applicable
Guidelines range was adjusted to 210 to 240 months. (ECF No.
23, ¶ 84).
appeared for sentencing on July 26, 2017. (ECF No. 25). The
Court made inquiry that Gonzales was satisfied with his
counsel; the PSR was reviewed and adopted; Gonzales and his
counsel were afforded the opportunity to speak and make a
statement; and, the Court then imposed a Guidelines sentence
of 235 months imprisonment, three years supervised release,
no fine, and a $100.00 special assessment. (ECF No. 25).
Judgment was entered by the Court on July 28, 2017. (ECF No.
August 4, 2017, retained counsel, Franklyn Mickelson, entered
an appearance on behalf of Gonzales. (ECF No. 29). Through
his retained counsel, Gonzales timely filed a direct appeal
from the Judgment. (ECF No. 30). Gonzales subsequently filed
a motion to dismiss his appeal, his counsel stating that
after reviewing the record with Gonzales it was determined
that there were no non-frivolous issues to raise on appeal.
(Appellate No. 17-2709, Motion to Dismiss filed September 18,
2017). The Eighth Circuit Court of Appeals granted the motion
to dismiss on September 19, 2017 (ECF No. 37-1), and the
Court's Mandate was issued on the same date (ECF No. 37).
February 5, 2018, Gonzales filed his pro se Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (the
“motion”). (ECF No. 38). The motion alleges three
grounds for relief, summarized as follows: (1) plain error
was committed when the Court misapplied the guidelines
providing a four-level enhancement for a leader/organizer;
(2) ineffective assistance of counsel for failing to object
to the four-level enhancement for a leader/organizer; and,
(3) ineffective assistance of counsel for failing to argue
for a downward variance under the factors of 18 U.S.C. §
3553(a). (ECF No. 38, pp. 4-5; ECF No. 39).
United States' response to the motion was filed on March
6, 2018. (ECF No. 42). Gonzales filed a reply on March 22,
2018. (ECF No. 43).
prisoner in custody under sentence . . . claiming the right
to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “If the court finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b). A thorough review of Gonzales'
motion and the files and records of this case conclusively
shows that Gonzales is not entitled to relief, and the
undersigned recommends the denial and dismissal of his motion
with prejudice without an evidentiary hearing.
Gonzales' Guidelines Claim is Procedurally
Government argues that Gonzales' claim that the Court
misapplied the Sentencing Guidelines to impose a four-level
enhancement for a leader/organizer is procedurally defaulted
and cannot be raised in a § 2255 motion. (ECF No. 42,
pp. 3-7). The undersigned agrees.
United States Supreme Court has “long and consistently
affirmed that a collateral challenge may not do service for
an appeal.” United States v. Frady, 456 U.S.
152, 165 (1982) (internal citations omitted). Relief under
§ 2255 “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of
justice.” United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996). The circumstances under which a
guilty plea may be attacked on collateral review are strictly
limited, and “[i]t is well settled that a voluntary and
intelligent plea of guilty made by an accused person, who has
been advised by competent counsel, may not be collaterally
attacked.” Mabry v. Johnson, 467 U.S. 504, 508
(1984). Even the voluntariness and intelligence of a guilty
plea can be attacked on collateral review only if
first challenged on direct review, as “[h]abeas review
is an extraordinary remedy and ‘will not be allowed to
do service for an appeal.'” Bousley v. United
States, 523 U.S. 614, 621 (1998) (internal quotation
marks and citation omitted). “[T]he concern with
finality served by the limitation on collateral attack has
special force with respect to convictions based on guilty
case, Gonzales knowingly and intelligently pleaded guilty to
the conspiracy to distribute methamphetamine charged in the
Indictment. He does not challenge the voluntary nature of his
guilty plea in these collateral proceedings. Instead, he
argues that the four-level enhancement imposed for his role
as an organizer or leader of a criminal activity that
involved five or more participants, or which was otherwise
extensive, was a misapplication of the Sentencing Guidelines
by the Court at sentencing. After initially filing a notice
of appeal, Gonzales later voluntarily dismissed his appeal.
By dismissing his appeal, Gonzales has procedurally defaulted
the guidelines misapplication claim he now raises.
procedural default may be excused only if Gonzales “can
show both (1) a cause that excuses the default, and (2)
actual prejudice from the errors that are asserted.”
Matthews v. United States, 114 F.3d 112, 113 (8th
Cir. 1997) (quoting Bousley v. Brooks, 97 F.3d 284,
287 (8th Cir. 1996)); Apfel, 97 F.3d at 1076; and,
Frady, 456 U.S. at 167-68. “For cause to
exist, the external impediment, whether it be governmental
interference or the reasonable unavailability of the ...