GONZALEZ v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Katharine S. Hayden on 5/25/17. (cm, )
NOT FOR PUBLICATION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. Gonzalez
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.
At this time, the Court must screen for summary dismissal pursuant to Rule 4 of the Rules
Governing Section 2255 Proceedings for the United States District Courts. For reasons stated
below, the Court dismisses the motion.
STANDARD OF REVIEW
A prisoner in federal custody under sentence of a federal court “may move the court which
imposed the sentence to vacate, set aside or correct the sentence” upon three grounds: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the
court was without jurisdiction to impose such sentence”; or (3) “that the sentence was in excess of
the maximum authorized by law.” 28 U.S.C. § 2255(a).
A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See
United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, because a § 2255 motion to
vacate is a collateral attack on a sentence, a criminal defendant “must clear a significantly higher
hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982), cited
in United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). For its part, “the court must accept
the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the
existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation
marks and citation omitted). Additionally, “[i]t is the policy of the courts to give a liberal
construction to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). “If
it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party.” Rule 4 of the Rules Governing Section 2255 Proceedings for the United
States District Courts.
Gonzalez argues that Mathis renders his prior convictions inapplicable under the career
offender provision of the sentencing guidelines. The Court disagrees. To begin with, Mathis dealt
with a statute under the Armed Career Criminal Act (“ACCA”), which mandates courts to impose
enhanced sentences if the statutory provisions are met. By contrast, all provisions of the sentencing
guidelines are advisory, and therefore were not binding on this Court when it sentenced Gonzalez.
Significantly, the Supreme Court has just held that invalidation of a statutory provision under the
ACCA did not render an identically-worded provision in the sentencing guidelines invalid because
of the advisory nature of the guidelines. See Beckles v. United States, 137 S. Ct. 886, 892 (2017).
Further, the facts of this case do not implicate Mathis. The ACCA defines “violent felony”
as including, among other things, enumerate crimes of “burglary, arson, or extortion.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The issue in Mathis is whether a conviction under a state statute, which defines
a similar crime to encompass more conduct than the traditional definitions of these enumerated
crimes at common law, can serve as a predicate conviction under the ACCA that would subject
defendants to enhanced sentences. 136 S. Ct. at 2250. The defendant in Mathis was convicted
under an Iowa statute that defined burglary as the unlawful entry into “any building, structure, [or]
land, water, or air vehicle,” whereas at common law, the crime of burglary requires unlawful entry
into a building or other structure only. Id. at 2249. Critically, the statutory definition of burglary
is more encompassing than the common law definition. Id. To complicate matters, the jury did
not have to specify, nor even agree on, the actual location of the burglary to convict the defendant.
Id. at 2250. Therefore, the defendant’s conviction under the Iowa statute could have been based
on an unlawful entry into a vehicle, which would not fit the definition of “burglary” under the
The defendant, as it turned out, did commit the burglary of a structure. Id. at 2250. The
lower courts made factual findings to that effect, and determined that his prior burglary qualified
as a prior conviction under the ACCA. Id. The Supreme Court reversed, finding that because the
required element in the Iowa burglary statute criminalizes more expansive conduct than the same
element in the crime of common law burglary, any conviction under that Iowa statute cannot serve
as a predicate conviction for the purposes of the ACCA. Id. at 2257.
But Gonzalez’s prior convictions were drug convictions, which were defined differently
under the guidelines provision that enhanced his sentence. At the time of Gonzalez’s conviction,
the guidelines 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.” U.S. Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sentencing Comm’n 2010).
Unlike the definition of “violent crimes” in Mathis, this provision does not rely on common law—
indeed, drug offenses are contemporary crimes that are almost exclusively defined by statutes.
Thus, this Court did not have to rely on common law to determine the elements of a predicate
offense—the elements were already defined by the guidelines. As long as a state drug offense
encompassed those elements, it was a predicate offense. See Mathis, 136 S. Ct. at 2248 (“To
determine whether a prior conviction [qualifies as a predicate offense], courts apply what is known
as the categorical approach: They focus solely on whether the elements of the crime of conviction
sufficiently match the elements [of the predicate offense], while ignoring the particular facts of the
As Mathis states, “we have repeatedly made clear that application of [the] ACCA involves,
and involves only, comparing elements. Courts must ask whether the crime of conviction is the
same as, or narrower than, the relevant . . . offense.” 136 S. Ct. at 2257. Gonzalez’s two prior
drug offenses were under N.J.S.A. §§ 2C:35-7 and 2C:35-7.1. ECF No. 5-1 at 8. N.J.S.A. §
2C:35-7(a) criminalizes “distributing, dispensing or possessing with intent to distribute a
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[.]”
N.J.S.A. § 2C:35-7.1(a) criminalizes “distributing, dispensing or possessing with intent to
distribute a controlled dangerous substance or controlled substance analog while in, on or within
500 feet of the real property comprising a public housing facility, a public park, or a public
building[.]” Both statutes encompass the same elements as those defined by the guidelines: (1)
distributing, dispensing, or possessing, (2) with an intent to distribute, (3) a controlled substance.
The fact that they include additional elements, within 1000 feet of a school or within 500 feet of
public housing, makes the statutory crimes narrower than those defined by the guidelines. Per
Mathis, a narrower definition in the state statute does not disqualify a conviction under it from
counting as a predicate offense. Accordingly, the Court finds that the motion does not state a valid
claim under Mathis.
The Court also denies a certificate of appealability (“COA”). Pursuant to 28 U.S.C. §
2253(c), “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken from” a final order in a proceeding under 28 U.S.C. § 2255. A certificate of appealability
may issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists
of reason could disagree with the district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner has failed to make a
substantial showing of the denial of a constitutional right, and no certificate of appealability shall
issue. See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
For the reasons set forth above, the Motion is DISMISSED.
_s/Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
Dated: May 25, 2017
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