United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Jesus Gonzalez's
(“Gonzalez”) Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Filing No. 103). For the reasons stated
below, the motion is denied.
March 10, 2017, Gonzalez pled guilty pursuant to a written
plea agreement (Filing No. 57) to distributing 50 grams or
more of a mixture or substance containing methamphetamine, in
violation of 21 United States Code § 841(a)(1) and
(b)(1). Under Gonzalez's plea agreement with the
government, he agreed he would “be held responsible . .
. for at least 1.5 kilograms, but not more than 5 kilograms
of a mixture or substance containing methamphetamine.”
agreement, which the Court accepted at sentencing, further
provided that if Gonzalez truthfully disclosed to the
government “all information and evidence [he] has
concerning the offense and relevant conduct, ” and if
he otherwise qualified for safety-valve relief under 18
U.S.C. § 3553(f) and United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) §
5Cl.2, the government would recommend a two-level reduction
under § 2D1.1(b)(17) and relief from any applicable
statutory mandatory minimum sentence. In his Petition to
Enter a Plea of Guilty (Filing No. 56) and at his
change-of-plea hearing, Gonzalez acknowledged he faced a
mandatory minimum of five years imprisonment if he did not
qualify for the safety valve. Gonzalez also stated he
understood that his plea agreement limited his rights to
appeal and collaterally attack his conviction and sentence.
Gonzalez did retain the right to raise claims of ineffective
assistance of counsel.
Gonzalez pled guilty, the probation office prepared a
presentence investigation report (“PSR”) on
Gonzalez that found him responsible for at least 2.7
kilograms of a mixture or substance containing
methamphetamine. The PSR indicated Gonzalez did not qualify
for the safety valve because he had not provided the
government any information about his involvement in drug
trafficking. The PSR calculated Gonzalez's advisory
Guidelines range at 87 to 107 months imprisonment (level 29,
category I). Gonzalez also remained subject to the statutory
mandatory minimum of five years. Gonzalez did not object to
the PSR, which report was in line with the plea agreement.
sentencing, Gonzalez, through retained counsel Dana C.
Bradford, III (“Bradford”), moved (Filing Nos.
61, 62) for “a deviation or variance from a strict
application of the [G]uidelines to allow the Court to apply
the five year mandatory minimum sentence.” In his
motion, Gonzalez noted the PSR added “substantial
weight to the quantity of methamphetamine attributed to
[Gonzalez] in addition to the 118 grams” he admittedly
sold on February 17, 2016. At sentencing, the government
resisted Gonzalez's motion, noting he had chosen not to
provide a safety-valve interview and should not benefit from
his status as a first-time offender without doing so.
Court granted Gonzalez's motion in part over the
government's objection. Based largely on Gonzalez's
limited criminal history and his success on pretrial release,
the Court sentenced him to 72 months imprisonment followed by
5 years of supervised release. Gonzalez did not appeal.
April 16, 2018, Gonzalez filed the present § 2255
motion, asserting three main grounds for relief.
Specifically, Gonzalez alleges Bradford (1) was ineffective
in contesting the drug quantity attributed to him in the PSR;
(2) made no effort to obtain safety-valve relief for Gonzalez
under 18 U.S.C. § 3553(f); and (3) failed to pursue a
mitigating-role reduction under the Guidelines. Gonzalez also
claims he asked Bradford to appeal these “viable
issues, ” but Bradford failed to follow through.
Court set Gonzalez's motion for an evidentiary hearing
and appointed the Federal Public Defender to represent him.
Gonzalez and Bradford both testified at the hearing on August
10, 2018. Having considered that testimony and carefully
reviewed the record, the Court finds Gonzalez is not entitled
to any relief.
Standard of Review
2255(a) allows a prisoner in custody pursuant to a sentence
imposed by a federal judge to move to vacate, set aside, or
correct his sentence if the sentence was imposed “in
violation of the Constitution or laws of the United
States.” Gonzalez alleges Bradford's mistakes
effectively deprived him of his Sixth Amendment right to
effective counsel. See U.S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668, 698 (1984);
Walker v. United States, 810 F.3d 568, 577-78 (8th
Cir. 2016) (“The Sixth Amendment guarantees the right
to effective counsel during plea negotiations and the entry
of a guilty plea.”).
ineffective-assistance claims are subject to the two-part
test articulated in Strickland. See,
e.g., Holder v. United States, 721 F.3d
979, 986 (8th Cir. 2013). To prevail under § 2255,
Gonzalez must show Bradford's performance was both
“deficient”-that is, “that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth