United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
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”).
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.
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.
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.
appealed, but the Fifth Circuit Court of Appeals affirmed his
sentence on November 10, 2016. Gonzalez timely filed the
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.
28 U.S.C. § 2255
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).
Issues Raised on Appeal May Not Be Relitigated
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.”).
Ineffective Assistance of Counsel
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).
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
Counsel's failure to argue for drug quantity below
1000 kilograms at sentencing
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.
rearraignment, Gonzalez was advised of the elements of Count
and the penalty range of 10 years' minimum up to life
imprisonment. The Government outlined the facts regarding
Gonzalez' involvement in the marijuana smuggling
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