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United States v. Gonzales

United States District Court, W.D. Arkansas, Fort Smith Division

March 29, 2018

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
MAURO GONZALES DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Before 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 and recommendation.

         I. Background

         On June 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).

         Gonzales 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).

         On 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 No. 17).

         An 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).

         On May 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).

         Gonzales 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. 26).

         On 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).

         On 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[1], 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).

         The 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).

         II. Discussion

         “A 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.

         A. Gonzales' Guidelines Claim is Procedurally Defaulted

         The 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.

         The 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 pleas.” Id.

         In this 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.

         This 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 ...


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