United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge.
TO
THE HONORABLE STEVEN P. LOGAN:
Before
the Court is Movant Roberto Gonzalez-Loera's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (Civil Docket “CV” ECF No. 1).
Gonzalez-Loera asserts his sentence must be vacated because
he was denied the effective assistance of counsel.
Background
A grand
jury indictment returned August 13, 2013, charged
Gonzalez-Loera with nine felony counts comprised of
conspiracy to possess with intent to distribute a controlled
substance, conspiracy to import and importation of a
controlled substance, possession with intent to distribute
methamphetamine, and possession with intent to distribute
cocaine. (Criminal Docket (“CR”) ECF No.
3).[1]
A superseding indictment returned May 21, 2014, charged these
same counts against Gonzalez-Loera, added four additional
codefendants to the conspiracy alleged in Count One, and
added a claim of forfeiture. (CR ECF No. 74).
Ten
months after the superseding indictment was issued, at the
conclusion of a Rule 11 hearing and pursuant to a lodged plea
agreement, Gonzalez-Loera pleaded guilty to Count One of the
superseding indictment, i.e., conspiracy to possess with the
intent to distribute methamphetamine in violation of 21
U.S.C. §§ 841(b)(1)(A) and 846. (CR ECF Nos. 207
& 208). In return for Gonzalez-Loera's plea to Count
One the Government agreed to dismiss the other eight counts
alleged against him. (CR ECF No. 208 at 3-4). The parties
stipulated in the written agreement that Gonzalez-Loera's
sentence would be capped “at the low end of his
advisory guideline range, as determined by the Court.”
(CR ECF No. 208 at 3). Additionally, in the written plea
agreement Gonzalez-Loera waived his right to an appeal and to
collaterally attack his conviction and sentence, other than
to assert a claim of ineffective assistance of counsel. (CR
ECF No. 208 at 5). The plea agreement contained a factual
basis for the guilty plea, i.e., that on October 23, 2012,
November 18, 2012, December 6, 2012, and May 4, 2013, Movant
“and others” arranged for the transportation of
cocaine and methamphetamine “across the border from the
Republic of Mexico into the United States.” (CR ECF No.
208 at 7). The specific amounts of drugs transported on those
dates, respectively, was 10.98 kilograms of methamphetamine,
17.31 kilograms of cocaine, 2.56 kilograms of
methamphetamine, and 5.59 pound (2.54 kilograms) of
methamphetamine. (Id.).
In the
plea agreement and at the Rule 11 hearing Gonzalez-Loera
stated he had read the plea agreement and reviewed it with
counsel. He further averred he understood the charge to which
he was pleading guilty, the rights he was waiving by pleading
guilty, and that he was pleading guilty knowingly and
voluntarily. (CR ECF No. 208 at 8; CR ECF No. 319 at 5-6,
13-14). He further declared he was satisfied with his
counsel's performance. (CR ECF No. 208 at 9; CR ECF No.
319 at 21).
At the
plea hearing the Court informed Gonzalez-Loera that he was
pleading guilty to “conspiracy to possess with the
intent to distribute controlled substances, which happens to
be a Class A felony offense, ” and asked
Gonzalez-Loera: “Is that the crime that you wish to
plead guilty to?” and Gonzalez-Loera replied:
“Yes.” (CR ECF No. 319 at 7). The Court then
informed Gonzalez-Loera of the mandatory minimum sentence of
ten years imprisonment, noting the maximum punishment of life
imprisonment and a fine of ten million dollars. (CR ECF No.
319 at 7). The Court then showed Gonzalez-Loera a copy of the
Federal Sentencing Guidelines Table, and Gonzalez-Loera told
the Court he understood the plea agreement guaranteed his
sentence would “be capped at the low end of the
advisory guideline range.” (CR ECF No. 319 at 8). The
following colloquy then occurred:
THE COURT: [Defense counsel], during the course of your
representation, I'm not asking you to provide the Court
with any confidential communications you've had with your
client, but in terms of the numbers and the length of time of
the conspiracy, and the fact that you know your client better
than anyone in this room, what advice have you provided to
him as to where you believe he might fall under the Federal
Sentencing Table?
MR. VALDEZ: Your Honor, we went through the guidelines. And,
in fact, the Government also provided us a calculation so
that we'd be on the same page. I provided that to my
client. And I also went through with my client any possible
reductions that he may be able to present to the Court.
(CR ECF No. 319 at 9-10).
The
factual basis for the guilty plea was placed on the record
during the Rule 11 hearing and Gonzalez-Loera avowed the
following factual basis was true:
[THE PROSECUTOR]: From at least in or about May 2012 and
continuing to in or about August 2013, in the District of
Arizona and elsewhere, Defendant Roberto Gonzalez-Loera did
knowingly combine, conspire, confederate and agree together
and with others to possess with the intent to distribute five
kilograms or more of a mixture and substance containing a
detectable amount of cocaine, and 50 grams or more of
methamphetamine, its salts, isomers, and salts of its
isomers, both Schedule II controlled substances, in violation
of Title 21 United States Code Sections 841(a)(1) and
subsections (b)(1)(A)(ii) and (b)(1)(A)(viii). In that
specifically on November 18th, 2012, this defendant and
others arranged for two individuals to transport across the
border from the Republic of Mexico into the United States
17.31 kilograms of cocaine through the Andrade Port of Entry,
which were concealed in the quarter panels of a Toyota Scion.
Further, on October 23rd, 2012, this defendant and others
arranged for an individual to transport across the border
from the Republic of Mexico into the United States 10.98
kilograms of methamphetamine, and through a checkpoint on
Highway 95, which were concealed in the side bumper and wheel
wells of a Chevrolet Malibu.
Further, on December 6, 2012, this defendant and others
arranged for an individual to transport across the border
from the Republic of Mexico into the United States 2.56
kilograms of methamphetamine through the Andrade Port of
Entry, which were concealed in the dashboard of a Nissan
Sentra.
And also, that on May 4th, 2013, this defendant and others
arranged for an individual to transport across the border
from the Republic of Mexico into the United States 5.59
pounds of methamphetamine.
This defendant admits that he controlled the movement of
these individuals who actually transported the controlled
substance, gave them directions, and promised them payment
for their efforts on his behalf.
***
THE COURT: Mr. Gonzalez, what Miss McDonald did behind you as
the federal prosecutor in your case, she read what's
called the factual basis. It's basically a summary of
what the United States Government believes they can prove
against you in this case.
Was all of that information that she just placed on the
record, and you told me minutes ago that you read, which is
page-lines 1 through 27 on page number 7 [of the written plea
agreement], was that all true?
THE DEFENDANT: Yes, sir.
THE COURT: Sir, are you satisfied with all the assistance
your lawyer, [], has provided to you in this case?
THE DEFENDANT: Yes, sir.
THE COURT: Sir, would you like to give up your right to go to
trial so that you can enter a plea of guilty this afternoon?
THE DEFENDANT: Yes, sir.
(ECF No. 319 at 19-21).
Two
draft Presentence Investigation Reports (“PSR”)
were prepared. (CR ECF No. 233; CR ECF No.
237).[2] Gonzalez-Loera, through counsel, filed a
sentencing memorandum asking the Court to depart downward
from the advisory sentencing guideline range. (CR ECF No.
285).[3] The Government responded, opposing a
downward departure. (CR ECF No. 291). Defense counsel also
filed objections to the PSR, including objecting to the
inclusion of events occurring prior to Gonzalez-Loera's
involvement in the conspiracy, the quantity of drugs seized
on the specific dates alleged in the indictment, and the
finding that Gonzalez-Loera played a leadership role in the
conspiracy. (ECF No. 295 at 24-28). Defense counsel also
objected to the PSR's statement that Gonzalez-Loera was
associated with the Sinaloa Cartel and that his participation
in the conspiracy extended beyond distributing funds.
(Id.). The Government responded:
co-operators [] were prepared to testify at trial [that] the
defendant was the transportation cell head responsible for
acquiring, hiring, deploying, and paying a stable of young
couriers to cross, stash, and transport methamphetamine and
cocaine. The government further cites cellular text messages
between the driver of the vehicle [] and the defendant, and
witness statements, confirming the defendant's extensive
and heavy-handed involvement in the conspiracy.
(CR ECF No. 295 at 25). The Government also asserted, as it
did at sentencing:
The defendant downplays his role and control over the
transporters to that of a mere paymaster which is
contradictive to the evidence of his involvement. The
defendant recruited, trained, assigned tasks, closely
monitored the completion of tasks, and paid the transporters.
The defendant monitored the transporters to confirm a
successful crossing into the United States from Mexico, and
kept a tight control over the transporters until he/she
arrived at the delivery destination. He would then talk the
transporter through, via cell phone, each of the stops to
unlock a trap so the controlled substance could be handed
over. The defendant was involved in procuring the vehicles
used for transportation of controlled substances, and for
having traps installed on those vehicles. He decided routes
taken when transporters were delivering to destination
cities, and he made the stash house arrangements. Therefore,
the defendant's leadership role is supported by ample
evidence, and the government requests that the objection be
overruled.
(CR ECF
No. 295 at 27-28).
The
final PSR calculated a Total Offense Level of 39 and a
criminal history category of I, resulting in an advisory
sentencing guideline range of 262 to 327 months imprisonment.
(CR ECF No. 295).[4] On September 28, 2015, at the conclusion
of a sentencing hearing at which the Court heard from
Gonzalez-Loera and his family and heard argument regarding
the motion to depart downward, the Court denied the motion to
depart downward and sentenced Gonzalez-Loera to a term of 262
months imprisonment. (CR ECF Nos. 302 & 320). The Court
overruled all of the defense's objections to the PSR at
the sentencing hearing. (CR ECF No. 320 at 2-11). The final
plea agreement, which included the insertion of the word
“superseding” with regard to references to the
indictment, was approved at sentencing. (CR ECF No. 300).
Gonzalez-Loera
appealed, asserting: (1) the Court violated Rule 11 by
modifying the plea agreement; (2) his right to be free of
double jeopardy was violated; and (3) “the court
intruded upon the prosecutor's charging decision by
requiring him to plead to count 1 of the superseding
indictment.” United States v. Gonzalez-Loera,
680 Fed.Appx. 595, 597 (9th Cir.), cert. denied, 137
S.Ct. 2145 (2017). The Ninth Circuit Court of Appeals
affirmed Gonzalez-Loera's and sentence, concluding he had
not shown plain error with regard to his first claim for
relief; that his double jeopardy challenge was waived by the
plea agreement; and that the ...