GONZALEZ v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Katharine S. Hayden on 9/15/2017. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil Action No. 16-9412 (KSH)
HAYDEN, District Judge:
Petitioner Sadiel Gonzalez, confined at USPC McCreary in Pine Knot, Kentucky, has filed
a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, challenging a 188month sentence imposed by this Court after he pled guilty to the crime of possession and
distribution of 100 grams or more of heroin, a controlled substance. United States v. Gonzalez,
No. 09-cr-0709 (“Crim. Dkt.”), ECF No. 75 (D.N.J. entered June 1, 2011). His sentence was
enhanced by application of the career offender provision in the United States Sentencing
Guidelines, based on prior state drug convictions for possession and distribution of controlled
substances within 1,000 feet of a school zone and within 500 feet of public housing. He contends
that under Mathis v. United States, 136 S. Ct. 2243 (2016), these prior offenses no longer qualify
as predicate convictions and, as such, he should be resentenced. The Court dismissed the motion,
finding Mathis inapplicable to his claim. (See Op. 4-5, May 25, 2017, ECF No. 7.) Presently
before the Court is his motion for reconsideration, pursuant to Federal Rule of Civil Procedure
59(e). Because Gonzalez did not file his Rule 59(e) motion within the required 28 days of the
Court’s dismissal, and the Court has no authority to grant extensions for Rule 59(e) motions, see
Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules 50(b) and (d), 52(b),
59(b), (d), and (e), and 60(b).”), the Court instead construes the motion for reconsideration as filed
under Rule 60(b). For the reasons stated below, the Court denies the motion for reconsideration. 1
STANDARD OF REVIEW
Federal Rule of Civil Procedure 60(b) provides that “the court may relieve a party . . . from
final judgment, order or proceeding” on the grounds of:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
(6) any other reason that justifies relief.
The general purpose of Rule 60(b) is “to strike a proper balance between the conflicting
principles that litigation must be brought to an end and that justice must be done.” Walsh v. Krantz,
423 F. App'x 177, 179 (3d Cir. 2011) (per curiam) (quoting Boughner v. Sec'y of Health, Educ. &
Welfare, 572 F.2d 976, 977 (3d Cir. 1978)). “Rule 60(b) is a provision for extraordinary relief and
may be raised only upon a showing of exceptional circumstances.” Mendez v. Sullivan, 488 F.
Although Gonzalez has already appealed the Court’s dismissal, see ECF No. 10, the Court has
jurisdiction to entertain the motion for reconsideration if it denies the motion. See Fed. R. Civ. P.
App'x 566, 568 (3d Cir. 2012) (per curiam) (citing Sawka v. Healtheast, Inc., 989 F.2d 138, 140
(3d Cir. 1993)). “Rule 60(b) provides that a motion for relief from judgment or order ‘shall be
made within a reasonable time,’ or if based on mistake, newly discovered evidence, or fraud, ‘not
more than one year after the judgment, order, or proceeding was entered or taken.’” United States
v. Fiorelli, 337 F.3d 282, 288 n.3 (3d Cir. 2003).
With respect to some of the individual provisions of Rule 60(b), “[r]ule 60(b)(5) may not
be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule
provides a means by which a party can ask a court to modify or vacate a judgment or order if ‘a
significant change either in factual conditions or in law’ renders continued enforcement
‘detrimental to the public interest.’” Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v.
Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)). The moving party bears the burden of
establishing that changed circumstances exist. See id.
Rule 60(b)(6) is a catch-all provision and provides that a party may be relieved from a final
judgment or order for “any other reason that justifies relief.” However, obtaining relief under Rule
60(b)(6) requires extraordinary and special circumstances. See Pridgen v. Shannon, 380 F.3d 721,
728 (3d Cir. 2004) (citation omitted). “Such circumstances rarely occur in the habeas context.”
See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
In its prior opinion, the Court found Mathis inapplicable to Gonzalez’s habeas claim,
because the specific crimes implicated in Mathis were crimes of “burglary, arson, or extortion,”
whereas Gonzalez’s prior state offenses that rendered him a career offender under the Sentencing
Guidelines were drug offenses. ECF No. 7 at 3-4. The Court further found that under the
categorical approach analysis referenced in Mathis, his state crimes satisfied every element
required by the Sentencing Guidelines to qualify them as predicate offenses that rendered him a
career offender. Id. at 5.
In the instant motion, Gonzalez disputes the Court’s findings. Citing two cases, ChangCruz v. Att’y Gen. of U.S., 659 F. App’x 114 (3d Cir. 2016) and Singh v. Att’y Gen., 839 F.3d 273
(3d Cir. 2016), he contends the Third Circuit has already found that his state crimes in question,
as defined under N.J.S.A. §§ 2C:35-7 and 2C:35-7.1, cannot qualify as predicate offenses for the
purposes of the career offender provision of the Sentencing Guidelines. However, neither ChangCruz nor Singh applies to his habeas claim.
Chang-Cruz did involve at least one of the state crimes Gonzalez was convicted of, namely
a violation under N.J.S.A. § 2C:35-7. See 659 F. App’x at 115. Singh involved drug crimes under
two Pennsylvania statutes. See 839 F.3d at 279. But what is significant here is that both cases
involved the determination of whether the petitioners’ prior crimes made them ineligible for certain
discretionary relief from deportation. See Chang-Cruz, 659 F. App’x at 116; Singh, 839 F.3d at
278. Because the categorical approach analysis involves comparing the elements of the state crime
to the particular career offender statute/provision in question, see Mathis, 136 S. Ct. at 2248, it is
highly dependent on the exact language of the statutes involved. The mere fact that Chang-Cruz
and Singh dealt with different sets of statutes than the ones implicated in the instant matter already
weakens their applicability to the present case. 2
The petitioner in Chang-Cruz, as stated above, was convicted in New Jersey under N.J.S.A
§ 2C:35-7, which criminalized “distributing, dispensing or possessing with intent to distribute a
To use a layman’s analogy, just because a comparison between Ford and Honda may reveal that
Honda makes better cars than Ford, it says nothing about whether Toyota makes better cars than
General Motors, or whether Honda makes better cars than General Motors, even though all
comparisons involve cars—it is the cars themselves, not the methodology involved, that makes all
controlled dangerous substance or controlled substance analog while on any school property used
for school purposes which is owned by or leased to any elementary or secondary school or school
board, or within 1,000 feet of such school property or a school bus, or while on any school bus[.]”
The government argued that under the relevant federal statute, he was ineligible for deportation
relief because his state crime was analogous to a federal felony that prohibited, among other things,
“distributing, possessing with intent to distribute, or manufacturing a controlled substance in or
on, or within one thousand feet of, the real property comprising a public or private elementary,
vocational, or secondary school.” Chang-Cruz, 659 F. App’x at 115. The Third Circuit, applying
the modified categorical approach, 3 determined that because the New Jersey statute punished
either “distributing” or “dispensing,” it cannot serve as a predicate offense to deprive the petitioner
of deportation relief, when the federal felony only punished “distributing”—in essence, the state
crime punished broader conduct than the federal felony. Id. at 118-19.
The problem in Chang-Cruz does not present itself here. As the Court stated in its opinion,
the career offender provision of the Sentencing Guidelines applicable to the instant matter defined
a predicate drug offense as “the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” ECF
The modified categorical approach is used
when a prior conviction is for violating a so-called ‘divisible statute’. That kind of
statute sets out one or more elements of the offense in the alternative – for example,
stating that burglary involves entry into a building or an automobile . . . . [T]he
modified categorical approach permits sentencing courts to consult a limited class
of documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior conviction.
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). It is similar to the categorical approach,
in that courts still look to the language of the statutes to compare elements.
No. 7 at 4 (quoting U.S. Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sentencing Comm’n
2010)). As such, the career offender provision did not suffer the same problem as Chang-Cruz,
because the provision encompassed the same elements as the New Jersey statute, with the New
Jersey statute being narrower, not broader, due to an additional element concerning schools. Both
the federal and the state statutes punished dispensing, distributing, or possessing with the intent to
distribute. ECF No. 7 at 5. Nothing in Chang-Cruz or Singh suggests that their holdings extend
beyond the confines of an immigration proceeding. There was no finding, contrary to what
Gonzalez appears to argue, that any state drug crimes cannot serve as predicate offenses for the
purposes of the career offender provision.
In fact, the Sentencing Guidelines were never
referenced in either decision. 4
Furthermore, even if Gonzalez does indeed raise a meritorious claim, that claim would be
time-barred. He asserts that his claim is based on Mathis, but as stated above, the central issue in
Mathis involved the enumerated crimes of burglary, arson, or extortion, and a determination on
when the modified categorical approach may be used, both irrelevant for the purposes of the instant
§ 2255 motion. In reality, Gonzalez essentially asserts that this Court misapplied the categorical
approach at sentencing. 5 While Mathis contained extensive discussion of the categorical approach,
it acknowledged that the approach had been recognized by the Supreme Court long ago, at least as
late as Taylor v. United States, 495 U.S. 575 (1990). Mathis, 136 S. Ct. at 2248. Thus, any
Gonzalez also cites to additional cases outside of this circuit. Beyond the fact that those cases
are not binding on this Court, they also suffer the same problem as Chang-Cruz and Singh, in that
they, for obvious reasons, did not involve comparisons of the same statutes as the instant matter,
and therefore have limited relevance.
The Court need not rely on the modified categorical approach in this matter because a straight
categorical approach analysis revealed that the state crimes in question qualified under the career
challenge to this Court’s application of the approach should have been brought at sentencing, and
any habeas claim related to such application, be it ineffective assistance of counsel or otherwise,
should have been brought within one year after Gonzalez’s conviction and sentence became final. 6
See 28 U.S.C. § 2255(f). Neither occurred—instead, he filed an untimely § 2255 motion on
December 13, 2016. See ECF No. 1 at 13. Mathis did not present Gonzalez with a new filing
period because the right newly recognized by Mathis does not apply to his habeas claim.
However it is approached, Gonzalez’s § 2255 motion does not state a cognizable habeas
claim. Accordingly, because Gonzalez cannot show that this Court’s prior dismissal of his § 2255
motion was in error, his motion for reconsideration is denied.
For the reasons set forth above, the motion for reconsideration is DENIED.
_s/Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
Dated: September 15, 2017
Gonzalez’s conviction and sentence became final 90 days after the Third Circuit affirmed his
conviction and sentence on August 22, 2012, or November 20, 2012. See Crim. Dkt., ECF No.
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