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United States v. Gutierrez

United States District Court, D. New Mexico

October 10, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ANGELO GUTIERREZ, Defendant-Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.

         This matter is before me on Defendant Angelo Gutierrez's (“Defendant's”) “Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255” (“Motion”). ECF No. 10.[1] The United States has filed a Response [ECF No. 13] and Defendant has filed a Reply. ECF No. 16. Having reviewed the briefing and being fully advised, I recommend the Motion be denied because Defendant knowingly and voluntarily waived any collateral attack upon his conviction under 28 U.S.C. § 2255, and Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (2015), which was decided after the plea hearing in this case, does not affect Defendant's waiver.[2]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Crimes and the Charges

         On October 11, 2011, K-Mart Loss Prevention Officers (“LPOs”) observed Defendant and his brother, Anthony Gutierrez (“Anthony”), working together to shoplift multiple digital video discs (“DVDs”) and a backpack. Pre-Sentence Report (“PSR”) ¶¶ 9-12.[3] Anthony entered the store, secreted DVDs in a backpack, placed the backpack in a shopping cart, and after initially exiting the store without the backpack, re-entered the store and exited with the backpack. Id. ¶¶ 10-12. After Anthony exited the store, an LPO pursued him and grabbed the backpack, which caused Anthony to fall with the LPO on top of him. Id. ¶ 12. During the subsequent struggle, Defendant struck the LPO on top of the head with what was later identified as a Lorcin, model L380, .380 caliber semiautomatic pistol. Id. By then, another LPO had caught up to the group, and both Defendant and Anthony were physically struggling with both LPOs. Id. During that struggle, an LPO saw the firearm fall out of Defendant's hand and land underneath Anthony. Id. Anthony then grabbed the firearm, and observing Defendant being detained by one of the LPOs, loaded a round into the chamber of the firearm, pointed the firearm at the LPOs, and demanded that they release Defendant. Id. An LPO reported that Defendant screamed at his brother to “shoot these mother f ------ !” Id. Anthony ordered the LPOs to release Defendant, and when they did, Defendant grabbed the backpack and Anthony maintained possession of the firearm while they ran away. Id. Defendant and Anthony were later apprehended on the campus of a local community college. Id. ¶¶ 13-14.

         On January 26, 2012, Defendant was charged with Conspiracy to Commit Interference with Interstate Commerce by Robbery (Count 1), in violation of 18 U.S.C. § 1951(a); Interference with Interstate Commerce by Robbery and Violence and Aiding and Abetting (Count 2), in violation of 18 U.S.C. §§ 1951(a) and 2; and Using, Carrying, and Possessing a Firearm During and in Relation to and in Furtherance of a Crime of Violence, and Aiding and Abetting (Count 3), in violation of 18 U.S.C. §§ 924(c) and 2. Indictment 1-3, ECF No. 2, CR 12-155.

         B. The Presentence Investigation Report

         A Form 13 Presentence Investigation Report was disclosed on February 15, 2013, and revised on May 20, 2013. PSR 1. The PSR confirmed that Defendant did not have any prior felony convictions. Id. ¶ 16. According to the PSR, the guideline sentence for a violation of 18 U.S.C. § 924(c)(1) was the same as the minimum term of imprisonment required by statute, which was 84 months, the agreed-upon sentence of in Defendant's plea agreement. Id. ¶ 27; Plea Agreement, ECF No. 97, CR 12-155 at ¶ 3.

         C. The Plea Agreement

         On June 17, 2013, Defendant pled guilty to the § 924(c) charge in Count 3. In the plea agreement, the parties agreed to a term of imprisonment of 84 months, with the United States agreeing to dismiss Counts 1 and 2. Id. ¶¶ 4, 13. The plea agreement also included a section called “Waiver of Appeal Rights, ” which provided:

[T]he Defendant knowingly waives the right to appeal the Defendant's conviction(s) and any sentence . . . within the statutory maximum authorized by law and imposed in conformity with this plea agreement. In addition, the Defendant agrees to waive any collateral attack to the Defendant's conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

Id. ¶ 12 (emphasis added).

         As part of the plea agreement, Defendant's counsel acknowledged that she had “carefully discussed every part of this Agreement with my client.” Id. at 9. Defendant further attested:

I understand the terms of this Agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, of possible defenses, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing Guideline provisions, and of the consequences of entering into this Agreement. No promises or inducements have been given to me other than those contained in this agreement. No one has threatened or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this matter.

Id.

         D. The Change of Plea and Sentencing Hearing

         During the plea colloquy, during which Defendant answered the Court's questions under oath and subject to the penalty of perjury, Defendant denied being under the influence of any drugs or alcohol, or having any condition that interfered with his understanding of the proceedings. Plea Hr'g Tr. 3:4-9, 17-22, ECF No. 81. Defendant also told the Court that he had read the plea agreement and discussed it with his attorney before signing it. Id. 4:20-24. Defendant twice stated that he understood the terms of the plea agreement. Id. 5:3-5, 14-16. The Court twice confirmed with Defendant that he and the United States had agreed to a specific sentence of 84 months. Id. 6:5-9, 8:6-10. The Court also confirmed with Defendant that he understood that he was pleading guilty to Count 3 of the indictment. Id. 7:1-4.

         The Court asked Defendant whether he understood “the possible consequences of entering into this Plea Agreement, ” and Defendant said yes. Id. 10:22-25. Crucially for Defendant's Motion, the Court asked Defendant whether he realized that as part of the plea agreement, Defendant was “waiving or giving up [his] right to appeal this plea - - to appeal the sentence as long as I impose the agreed-upon sentence?” Id. 12:9-12. Defendant stated, “Yes.” Id. 12:13.

         After Defendant was advised of his trial rights, id. 12:14-14:6, and after Defendant confirmed the factual basis supporting his plea, id. 15:4-16:21, the Court accepted Defendant's guilty plea, finding that:

[Defendant] is fully competent and capable of entering an informed plea, that the Defendant is aware of the nature of the charges and the consequences of the plea, and that the Defendant's plea of guilty to Count 3 of the Indictment, the count that's covered in this Plea Agreement, is a knowing and voluntary plea, supported by an independent basis in fact containing each of the essential elements of the offense charged in Count 3.

Id. 17:17-18:1. Defendant's counsel confirmed that she and Defendant had read the Presentence Report prior to the plea hearing, and that her client “[was] in agreement with it.” Id. 18:7-13. Defendant's counsel further confirmed that there were no objections or corrections to the plea agreement. Id. 18:14-16. The Court proceeded to sentencing the same day, and both parties asked the Court to impose the agreed-upon sentence of 84 months. Id. 20:1-8. The Court then sentenced Defendant to 84 months' imprisonment, in accordance with the plea agreement. Id. 21:1-3. As a final matter, the ...


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