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United States v. Gonzalez

United States District Court, S.D. Texas, Corpus Christi Division

June 5, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
RICARDO GONZALEZ, Defendant/Movant. Cr. No. 2:15-217-7



         Defendant/Movant Ricardo Gonzalez (Gonzalez) filed a motion vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 443. The Court has reviewed the § 2255 motion and concludes that summary dismissal is appropriate because “it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief. . . .” Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (2017) (“2255 Rules”).

         I. BACKGROUND

         Gonzalez was one of 12 co-defendants involved in a marijuana smuggling conspiracy over a multiple year period. The Indictment included three Counts: 1) conspiracy to possess with intent to distribute more than 1000 kilograms of marijuana, 2) money laundering, and 3) felon in possession of a firearm. Gonzalez was only charged in Count One for violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). A Superseding Indictment was returned in June 2015, but it did not change the charge against Gonzalez. Gonzalez pled guilty to Count One without a plea agreement.

         The Probation Department prepared a Presentence Investigation Report (PSR). Gonzalez' offense level was calculated at 30, based upon 1000 kilograms of marijuana. After credit for acceptance of responsibility, Gonzalez' total offense level was 27. He had no prior criminal history. His resulting guideline sentencing range is the statutory minimum sentence of 120 months' imprisonment.

         At sentencing, the Court reviewed the guideline calculation with Gonzalez and noted there were no objections. The Government did not recommend a safety valve reduction. Gonzalez spoke to the Court and asked that he be sentenced for “what is mine.” D.E. 354, p. 5. The Court imposed the statutory minimum sentence and the required five years' supervised release. Judgment was entered on October 21, 2015.

         Gonzalez appealed, but the Fifth Circuit Court of Appeals affirmed his sentence on November 10, 2016. Gonzalez timely filed the present motion.


         Gonzalez argues that he was sentenced based upon more than 1000 kilograms of marijuana when he was only responsible for less than 100 kilograms. He argues that he had access to the PSR for only 15 days before the hearing and that counsel never explained the PSR to him. Finally, Gonzalez argues that counsel's failure to bring Gonzalez' limited participation in the conspiracy to the Court's attention constituted ineffective assistance of counsel.

         III. ANALYSIS

         A. 28 U.S.C. § 2255

         There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: 1) constitutional issues, 2) challenges to the district court's jurisdiction to impose the sentence, 3) challenges to the length of a sentence in excess of the statutory maximum, and 4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C. § 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 would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         B. Issues Raised on Appeal May Not Be Relitigated

         Gonzalez complained on appeal that the District Court attributed greater quantities of marijuana to him than the evidence supported. The Fifth Circuit rejected that argument. D.E. 435, pp. 3-4. Gonzalez also raised an issue that the PSR was not provided to him for the requisite amount of time, but the Circuit Court held that he waived the issue by failing to brief it. Id., p. 2. Those issues are foreclosed from review in this proceeding. United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (“It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.”).

         C. Ineffective Assistance of Counsel

         1. Standard

         Generally, an ineffective assistance claim presented in a § 2255 motion is properly analyzed under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001). To prevail on a claim of ineffective assistance of counsel, a movant must demonstrate that his counsel's performance was both deficient and prejudicial. Id. This means that a movant must show that counsel's performance was outside the broad range of what is considered reasonable assistance and that this deficient performance led to an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). To show that his attorney's performance at sentencing in a noncapital case was prejudicial under Strickland, the movant must demonstrate that counsel's error led to an increase in the length of his imprisonment. Glover v. United States, 531 U.S. 198, 203 (2001); United States v. Herrera, 412 F.3d 577, 581 (2005).

         If the movant fails to prove one prong, it is not necessary to analyze the other. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (“A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.”); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) (“Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.”).

         2. Counsel's failure to argue for drug quantity below 1000 kilograms at sentencing

         Gonzalez argues that counsel should have argued for a lower drug quantity during the proceedings because Gonzalez claims he did not know of some of the shipments and was only involved in a single shipment of 43.74 kilograms. Gonzalez further argues that he was not involved in any of the seizures of marijuana and he only agreed to be involved with 100 kilograms of marijuana.

         During rearraignment, Gonzalez was advised of the elements of Count One[1] and the penalty range of 10 years' minimum up to life imprisonment. The Government outlined the facts regarding Gonzalez' involvement in the marijuana smuggling conspiracy:

8 The evidence regarding Mr. Ricardo
9 Gonzalez, Your Honor: He was intercepted multiple
10 times on the target telephone number 1, which was under
11 the name of Roel Rodriguez. Mr. Ricardo Gonzalez was
12 discussing arrangements being made for the drug load on
13 April 28, 2014. Mr. Gonzalez mentioned Luis and ...

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