United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
26, 2016, Defendant/Petitioner Gilbert Gonzales (Petitioner)
filed a MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. §
2255, arguing that he should be re-sentenced without
enhancement. Motion (Doc. No. 1) According to Petitioner,
after the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), his
prior convictions no longer qualify as violent crimes and
should not have been used to enhance his
sentence. Id. at 5.
UNITED STATES' MOTION TO ENFORCE APPELLATE WAIVER IN THE
PLEA AGREEMENT AND RESPONSE TO DEFENDANT'S MOTION TO
CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255,
Plaintiff/Respondent United States (Respondent) contends that
in his Plea Agreement Petitioner waived his right to bring a
§ 2255 Motion. In DEFENDANT/PETITIONER'S RESPONSE TO
UNITED STATES' MOTION TO ENFORCE APPELLATE WAIVER IN THE
PLEA AGREEMENT AND REPLY TO THE UNITED STATES' RESPONSE
TO DEFENDANT/PETITIONER'S MOTION TO CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255, Petitioner asserts that
the enforcement of the waiver in the Plea Agreement would
result in a miscarriage of justice. Reply (Doc. No. 13).
January 27, 2015, Petitioner pleaded guilty, in accordance
with his Rule 11(c)(1)(C) Plea Agreement, to two counts of a
five-count Indictment charging him with Interference with
Interstate Commerce by Robbery under 18 U.S.C. § 1951 -
a Hobbs Act Robbery - and Carrying, Possessing and
Brandishing a Firearm During and in Relation to and in
Furtherance of a Crime of Violence under 18 U.S.C. §
924(c). Plea Agreement ¶ 3 (Doc. No. 71 in No. CR
on the Hobbs Act Robbery conviction, the United States
Probation Office found that Petitioner's base offense
level under the U.S.S.G. was 20. PSR ¶ 23. The
Probation Office determined that Petitioner was a career
offender under the Sentencing Guidelines because the Hobbs
Act Robbery was a felony that was “either a crime of
violence or a controlled substance offense” and because
Petitioner had at least two prior felony convictions of
either a crime of violence or a controlled substance abuse.
Id. ¶ 29. Petitioner's base offense level
was increased by 17 points for his career offender status.
His total adjusted offense level was 34. Id. ¶
32. Based on six earlier convictions, Petitioner's
criminal history category was VI. Id. ¶ 46.
accordance with Rule 11(c)(1)(C), Petitioner and Respondent
agreed to a specific sentence of 72 months for the Hobbs Act
Robbery conviction and a specific sentence of 84 months for
the corresponding § 924(c) conviction. Id.
¶ 3. The sentences were to run consecutively.
Id. On April 29, 2015, Petitioner was sentenced to a
total period of imprisonment of 156 months or 13 years.
Judgment (Doc. No. 79 in No. CR 13-237). The agreed upon
sentence of 13 years resulted in a much lower sentence than a
entered his plea of guilty under a written Plea Agreement
that contained this waiver of collateral attack provision:
The Defendant is aware that 28 U.S.C. § 1291 and 18
U.S.C. § 3742 afford a defendant the right to appeal a
conviction and the sentence imposed. Acknowledging that, the
Defendant knowingly waives the right to appeal the
Defendant's conviction and any sentence, including any
fine, imposed in conformity with this Fed. R. Crim. P.
11(c)(1)(C) plea agreement. In addition, the Defendant agrees
to waive any collateral attack to the Defendant's
convictions and any sentence, including any fine, pursuant to
28 U.S.C. §§ 2241, 2255, or any other extraordinary
writ, except on the issue of defense counsel's
Id. ¶ 19.
than addressing the merits of Petitioner's argument that
some of his convictions should not have been characterized as
crimes of violence for purposes of enhancing his sentence,
the Court considers whether Petitioner's waiver of a
collateral attack of his sentence forecloses his § 2255
waiver of collateral attack rights brought under § 2255
is generally enforceable where the waiver is expressly stated
in the plea agreement and where both the plea and the waiver
were knowingly and voluntarily made.” United States
v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001),
cert. denied, 534 U.S. 1085 (2002). An exception is
made if enforcement of the waiver would result in a
miscarriage of justice. United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004). But a miscarriage of
justice occurs only “ where the district court
relied on an impermissible factor such as race,  where
ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid, 
where the sentence exceeds the statutory maximum, or 
where the waiver is otherwise unlawful.” Id.
at 1327. “This list is exclusive: enforcement of an
appellate waiver does not result in a miscarriage of justice
unless enforcement would result in one of the four situations
enumerated above.” United States v. Polly, 630
F.3d 991, 1001 (10th Cir. 2011) (internal quotation marks
omitted). Additionally, error does not make a waiver
“otherwise unlawful” unless it “seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Hahn, 359 F.3d at 1327
(brackets and internal quotation marks omitted).
does not dispute that his written Plea Agreement contained an
explicit waiver of his right to bring a collateral challenge
under § 2255 on any issue other than ineffective
assistance of counsel in negotiating or entering the plea or
the waiver. See Plea Agreement ¶ 19. It is
undisputed that the Plea Agreement reflects that Petitioner
acknowledged his appellate and collateral attack rights and
knowingly waived them, and that his plea was voluntarily
made. See id.
opposition to the waiver argument rests on his assertion that
the “enforcement of the appellate waivers in these
types of cases would result in a miscarriage of justice
because it would require defendants who accepted
responsibility for their actions to serve unconstitutional
sentences.” Reply at 1-2. Petitioner contends that ...