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United States v. Rivera

United States District Court, D. Nebraska

September 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS GONZALEZ, Defendant.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         On 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.”

         The 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.

         After 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.

         Before 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.

         The 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.

         On 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.

         The 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.

         II. DISCUSSION

         A. Standard of Review

         Section 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.”).

         Gonzalez's 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 ...


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