Gonzalez-Loera v. United States

          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 ...