United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Dolores Gutierrez filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. D.E.
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
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
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.
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.
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
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 ...