United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY, SENIOR U.S. DISTRICT JUDGE
Aaron Elias Gonzalez-Gonzalez filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. (D.E. 127),
to which the United States of America (the
“Government”) responded (D.E. 140) and Movant
replied (D.E. 150). With the Court's permission, Movant
filed an amended § 2255 motion and memorandum in support
(D.E. 156), to which the Government responded (D.E. 168) and
Movant replied (D.E. 178).
Patrol agents tracking a group of men through the brush near
the Texas-Mexico border found Movant and five others near
several makeshift backpacks containing a total of 100.27
kilograms of marijuana. The men told investigating agents
that they were being smuggled into the United States by four
guides who had instructed them to carry the marijuana as they
travelled through the brush; however, the guides escaped
apprehension. Movant told agents that he was a Mexican
citizen who had paid smugglers to transport him into the
United States and that he had helped carry the marijuana
because he would otherwise have been left behind in the
men were charged with conspiracy to possess with intent to
distribute more than 100 kilograms of marijuana (Count 1) and
possession with intent to distribute more than 100 kilograms
of marijuana (Count 2). On January 22, 2018, Movant pled
guilty to possession with intent to distribute approximately
100.27 kilograms of marijuana (Count 2), in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B). In exchange
for his guilty plea, the Government agreed to dismiss Count 1
and recommend that Movant receive maximum credit for
acceptance of responsibility and a sentence within the
applicable guideline range. As part of his written Plea
Agreement, Movant waived his right to appeal his conviction
or sentence or to file a motion under 28 U.S.C. § 2255,
except to raise a claim of ineffective assistance of counsel.
Presentence Investigation Report (PSR, D.E. 84) assigned
Movant a base offense level of 24 based on drug quantity.
After a three-level adjustment for acceptance of
responsibility, the resulting advisory Guideline range for
Level 21, Criminal History Category II, was 41-51 months'
imprisonment; however, Movant was subject to a mandatory
minimum sentence of 5 years under 21 U.S.C. §
841(b)(1)(B). Counsel did not file any objections to the PSR,
which the Court adopted without change.
was sentenced to a mandatory minimum 60 months'
imprisonment, to be followed by 4 years' supervised
release. Judgment was entered April 24, 2018. Movant did not
appeal. He filed the present motion on August 7, 2018, and he
amended his motion on April 9, 2019. Both filings are timely.
original § 2255 motion raises the following claims:
1. Trial counsel was constitutionally ineffective at the plea
bargaining stage because she told Movant he would only be
held responsible for one sixth of the 100.27 kilograms of
marijuana because there were six coconspirators;
2. There exists a sentencing disparity between Movant and one
of his codefendants;
3. Movant's sentence exceeded his 41-51 month recommended
range under the Sentencing Guidelines; and
4. Trial counsel was ineffective for failing to investigate
and present mitigating evidence that Movant paid “tour
guides” $3500 to come to the United States, but was
“forced at gun point to traffic the marijuana.”
D.E. 127, p. 5.
amended § 2255 motion adds the following claims alleging
ineffective assistance of counsel:
1. Counsel did not advise Movant that he was subject to a
mandatory minimum 5-year sentence;
2. Counsel did not advise Movant that he could have entered
into an open plea;
3. Counsel did not consult with Movant regarding his
appellate rights; and
4. Counsel should have foreseen the passing of the First Step
Act of 2018 and argued for safety valve.