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Gonzales v. United States

United States District Court, D. New Mexico

March 10, 2017

GILBERT GONZALES, Defendant/Petitioner,
v.
UNITED STATES OF AMERICA, Plaintiff/Respondent.

          MEMORANDUM OPINION AND ORDER

         On June 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.[1] Id. at 5.

         In the 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).

         Background

         On 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 13-2371).

         Based 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.

         In 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 guideline sentence.

         Petitioner 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 ineffective assistance.

Id. ¶ 19.

         Rather 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 Motion.

         Analysis

         “A 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 “[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] 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).

         Petitioner 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.

         Petitioner's 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 ...


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