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United States v. Gutierrez

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

May 24, 2019

UNITED STATES OF AMERICA Plaintiff/Respondent,
v.
DOLORES GUTIERREZ, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Defendant/Movant Dolores Gutierrez filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 32.[1] Pending before the Court is the United States of America's (the “Government”) Motion for Judgment on the Record (D.E. 45), to which Movant did not respond.

         I. BACKGROUND

         In 2015, a Drug Enforcement Administration (DEA) task force began an investigation into the trafficking of cocaine, crack, and methamphetamine in Corpus Christi, Texas, which revealed that Movant and her boyfriend, Martin Lee Rodriguez, were involved in drug trafficking. On October 12, 2016, Movant was a passenger in Rodriguez' car when he was stopped for a traffic violation. Based on their behavior, officers suspected the two were transporting drugs. After Rodriguez consented to a search of the vehicle, a drug-detecting canine alerted to the driver's side door. Meanwhile, officers conducting a pat-down search of Movant discovered a small bag of marijuana and a grinder in her bra and two loaded firearms in the waistband of her pants. After being given her Miranda warnings, Movant told officers they would find more narcotics and weapons at her home. Officers obtained a search warrant for the residence shared by Movant and Rodriguez and found 14 more functioning firearms and ammunition, along with a small amount of crack cocaine, 59 grams of powder cocaine, and 23 grams of methamphetamine.

         Movant was charged with possession with intent to distribute 23 grams of methamphetamine (Count One), being a felon in possession of two firearms (Count Two), and being a felon in possession of 14 firearms (Count 3). On November 20, 2017, she pled guilty to the methamphetamine charge. In exchange for her guilty plea, the Government agreed to dismiss Counts Two and Three and recommend that Movant receive maximum credit for acceptance of responsibility and a sentence within the applicable guideline range. As part of the plea agreement, Movant waived her right to appeal or file a motion under 28 U.S.C. § 2255, except to raise a claim of ineffective assistance of counsel.

         At rearraignment, the Assistant United States Attorney (AUSA) offered a summary of the offense conduct to support a finding of guilt on the methamphetamine charge. When the Court asked Movant if the AUSA's statement regarding her conduct was correct, Movant initially stated that the methamphetamine and other drugs discovered at her residence were for her own personal use, and she had not distributed drugs to anyone else or assisted her boyfriend in doing so. The Court took a short recess so that Movant could confer with her counsel, after which the following exchange occurred:

DEFENDANT GUTIERREZ: I misunderstood you. I thought the whole thing was focused on what [the AUSA] was saying about the other people involved. But, yes, my neighbor-I would sell it to my neighbor.
THE COURT: You would sell it to your neighbor?
DEFENDANT GUTIERREZ: Yes. She would buy the meth and some coke from me.
THE COURT: All right. Very well. I'm going to ask you then, to the charges in Count One, how do you plead? Guilty or not guilty?
DEFENDANT GUTIERREZ: Guilty, sir.

11/20/2017 Rearraign. Tr., D.E. 39 at 26:8-18.

         With this explanation, the Court found that Movant entered her plea knowingly and voluntarily and that there was a factual basis to support a finding of guilt. The Court accepted her plea, found her guilty, ordered the preparation of a presentence investigation report (PSR), and set the case for sentencing.

         The PSR assigned Movant a base offense level of 26 based on 23 grams of 100% pure (actual) methamphetamine. Two levels were added pursuant to U.S.S.G. § 2D1.1(b)(1) because a dangerous weapon was possessed in connection with the offense. Movant was given a three-level adjustment for acceptance of responsibility. The resulting advisory Guideline range for Level 25, Criminal History Category II, was 63-78 months. Sentencing was held on February 20, 2018. Defense counsel did not lodge any objections to the PSR, but he did argue for a sentence at the lowest end of the Guidelines based on Movant's lifelong history ...


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