United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
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. 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.
FACTUAL AND PROCEDURAL BACKGROUND
The Crimes and the Charges
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. 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.
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.
The Presentence Investigation Report
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.
The Plea Agreement
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
Id. ¶ 12 (emphasis added).
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
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.
The Change of Plea and Sentencing Hearing
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.
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.
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 ...