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United States v. Gonzalez-Gonzalez

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

December 3, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
AARON ELIAS GONZALEZ-GONZALEZ, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

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

         Defendant/Movant 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).[1] 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).

         I. BACKGROUND

         Border 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 brush.

         All six 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.

         The 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.

         Movant 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.

         II. MOVANT'S ALLEGATIONS

         Movant's 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.

         Movant's 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.

         III. 28 ...


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