Gonzales v. United States of America

Filing 17

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 8 Response to Motion for 2255 Relief and dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) Certificate of Appealability will be denied. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

GILBERT GONZALES,
Defendant/Petitioner,

v.

No. CIV 16-747 JP/GJF
No. CR 13-2371 JP

UNITED STATES OF AMERICA,
Plaintiff/Respondent.

MEMORANDUM OPINION AND ORDER
On June 26, 2016, Defendant/Petitioner Gilbert Gonzales (Petitioner) filed a MOTION
TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255, arguing that he should be re-sentenced
without enhancement. Motion (Doc. No. 1) According to Petitioner, after the United States
Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his prior
convictions no longer qualify as violent crimes and should not have been used to enhance his
sentence. 1 Id. at 5.
In the UNITED STATES’ MOTION TO ENFORCE APPELLATE WAIVER IN THE
PLEA AGREEMENT AND RESPONSE TO DEFENDANT’S MOTION TO CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255, Plaintiff/Respondent United States
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Petitioner made two arguments claiming to be a beneficiary of Johnson’s holding. First, he asserts that the
Presentence Investigation Report (PSR) wrongly designated him as a career offender under the United States
Sentencing Guidelines (U.S.S.G.). Second, he posits that the Hobbs Act Robbery conviction is not a predicate crime
of violence for purposes of the enhanced sentence. Motion at 5. The first of Movant’s two arguments is foreclosed
by the Supreme Court’s recent decision in Beckles v. United States, ___ S.Ct. ___ , 2017 WL 855781 (Mar. 6, 2017)
(holding that the United States Sentencing Guidelines, including the career offender residual clause, are not subject
to a vagueness challenge under the Due Process Clause).

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(Respondent) contends that in his Plea Agreement Petitioner waived his right to bring a § 2255
Motion. In DEFENDANT/PETITIONER’S RESPONSE TO UNITED STATES’ MOTION TO
ENFORCE APPELLATE WAIVER IN THE PLEA AGREEMENT AND REPLY TO THE
UNITED STATES’ RESPONSE TO DEFENDANT/PETITIONER’S MOTION TO CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255, Petitioner asserts that the enforcement of the
waiver in the Plea Agreement would result in a miscarriage of justice. Reply (Doc. No. 13).
Background
On January 27, 2015, Petitioner pleaded guilty, in accordance with his Rule 11(c)(1)(C)
Plea Agreement, to two counts of a five-count Indictment charging him with Interference with
Interstate Commerce by Robbery under 18 U.S.C. § 1951 – a Hobbs Act Robbery – and
Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of
a Crime of Violence under 18 U.S.C. § 924(c). Plea Agreement ¶ 3 (Doc. No. 71 in No. CR 132371).
Based on the Hobbs Act Robbery conviction, the United States Probation Office found
that Petitioner’s base offense level under the U.S.S.G. was 20. PSR ¶ 23. The Probation Office
determined that Petitioner was a career offender under the Sentencing Guidelines because the
Hobbs Act Robbery was a felony that was “either a crime of violence or a controlled substance
offense” and because Petitioner had at least two prior felony convictions of either a crime of
violence or a controlled substance abuse. Id. ¶ 29. Petitioner’s base offense level was increased
by 17 points for his career offender status. His total adjusted offense level was 34. Id. ¶ 32.
Based on six earlier convictions, Petitioner’s criminal history category was VI. Id. ¶ 46.
In accordance with Rule 11(c)(1)(C), Petitioner and Respondent agreed to a specific
sentence of 72 months for the Hobbs Act Robbery conviction and a specific sentence of 84

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months for the corresponding § 924(c) conviction. Id. ¶ 3. The sentences were to run
consecutively. Id. On April 29, 2015, Petitioner was sentenced to a total period of imprisonment
of 156 months or 13 years. Judgment (Doc. No. 79 in No. CR 13-237). The agreed upon sentence
of 13 years resulted in a much lower sentence than a guideline sentence.
Petitioner entered his plea of guilty under a written Plea Agreement that contained this
waiver of collateral attack provision:
The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742 afford a defendant the right to appeal a conviction and the
sentence imposed. Acknowledging that, the Defendant knowingly
waives the right to appeal the Defendant’s conviction and any
sentence, including any fine, imposed in conformity with this Fed.
R. Crim. P. 11(c)(1)(C) plea agreement. In addition, the Defendant
agrees to waive any collateral attack to the Defendant’s
convictions and any sentence, including any fine, pursuant to 28
U.S.C. §§ 2241, 2255, or any other extraordinary writ, except on
the issue of defense counsel’s ineffective assistance.
Id. ¶ 19.
Rather than addressing the merits of Petitioner’s argument that some of his convictions
should not have been characterized as crimes of violence for purposes of enhancing his sentence,
the Court considers whether Petitioner’s waiver of a collateral attack of his sentence forecloses
his § 2255 Motion.
Analysis
“A waiver of collateral attack rights brought under § 2255 is generally enforceable where
the waiver is expressly stated in the plea agreement and where both the plea and the waiver were
knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001), cert. denied, 534 U.S. 1085 (2002). An exception is made if enforcement of the waiver
would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.
2004). But a miscarriage of justice occurs only “[1] where the district court relied on an
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impermissible factor such as race, [2] where ineffective assistance of counsel in connection with
the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the
statutory maximum, or [4] where the waiver is otherwise unlawful.” Id. at 1327. “This list is
exclusive: enforcement of an appellate waiver does not result in a miscarriage of justice unless
enforcement would result in one of the four situations enumerated above.” United States v. Polly,
630 F.3d 991, 1001 (10th Cir. 2011) (internal quotation marks omitted). Additionally, error does
not make a waiver “otherwise unlawful” unless it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Hahn, 359 F.3d at 1327 (brackets and internal
quotation marks omitted).
Petitioner does not dispute that his written Plea Agreement contained an explicit waiver
of his right to bring a collateral challenge under § 2255 on any issue other than ineffective
assistance of counsel in negotiating or entering the plea or the waiver. See Plea Agreement ¶ 19.
It is undisputed that the Plea Agreement reflects that Petitioner acknowledged his appellate and
collateral attack rights and knowingly waived them, and that his plea was voluntarily made. See
id.
Petitioner’s opposition to the waiver argument rests on his assertion that the
“enforcement of the appellate waivers in these types of cases would result in a miscarriage of
justice because it would require defendants who accepted responsibility for their actions to serve
unconstitutional sentences.” Reply at 1–2. Petitioner contends that he “had no way of knowing
that his sentence was unconstitutional ….” Id. at 2.
In addition, Petitioner asserts that his waiver was not so broad as to include changes in
the law that would later qualify him for relief. Id. at 3. Stated slightly differently, Petitioner
believes he could not have exercised a knowing and voluntary waiver of his rights to bring

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collateral attacks of future changes to the law that would benefit him. Petitioner represents that a
miscarriage of justice would occur where enforcement of the waiver would result in a sentence
that far exceeded his revised guideline range. Id. at 3.
In United States v. Frazier-LeFear, ___ F. App’x ___, 2016 WL 7240134 (10th Cir. Dec.
15, 2016), the Tenth Circuit Court of Appeals affirmed the district court’s dismissal of the
defendant’s § 2255 motion based on a waiver provision in the plea agreement. The Tenth Circuit
examined the question of whether the district court had erred in concluding that the § 2255
motion did not fall within the miscarriage of justice exception to a collateral rights waiver.
Id. at *1.
In Frazier-LeFear, the defendant argued that her sentence was subject to constitutional
challenge “on the grounds later recognized in Johnson and that her counsel’s failure to anticipate
Johnson and raise such a challenge reflected ineffective assistance.” Id. The Tenth Circuit Court
rejected the defendant’s argument finding that her challenge was not to the “waiver itself” but
was, instead, a challenge to the lawfulness of the sentence. Id. at 2. “[T]o allow alleged errors in
computing a defendant’s sentence to render a waiver unlawful would nullify the waiver based on
the very sort of claim it was intended to waive.” Id. (citation omitted).
The fact that the defendant’s alleged sentencing error arose out of a subsequent change in
the law did not alter the Court’s analysis in Frazier-LeFear. Id. at 3. The Tenth Circuit Court
reasoned:
The essence of plea agreements … is that they represent a
bargained-for understanding … in which each side foregoes [sic]
certain rights and assumes certain risks in exchange for a degree of
certainty as to the outcome of criminal matters. One such risk is a
favorable change in the law. To allow defendants or the
government to routinely invalidate plea agreements based on
subsequent changes in the law would decrease the prospects of
reaching an agreement in the first place.
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Id. (citation omitted) (emphasis added). Nor was the Tenth Circuit Court persuaded by the
defendant’s argument that she did not agree to be sentenced unconstitutionally. Id. at 4. “This
argument involves the ‘logical failing [] of focusing on the result of the proceeding, rather than
on the right relinquished, in analyzing whether an appeal waiver is [valid].’” Id. (citation
omitted). Moreover, “[t]he fact that [the defendant’s] relinquishment of this right results in the
lost opportunity to raise a constitutional challenge under Johnson reflects the natural operation,
not the invalidity, of the waiver.” Id.
The Court finds Petitioner’s miscarriage of justice argument to be the same as that
advanced and rejected in Frazier-LeFear. Like Frazier-LeFear, Petitioner claims he could not
have known the law would later change and that he subsequently might be entitled to a sentence
or guideline range that was not available when he entered into his plea agreement. That argument
is unavailing. Petitioner has not alleged any error that relates to the waiver itself. The same is
true regarding Petitioner’s position that he could not have knowingly and voluntarily waived his
right to bring a Johnson claim. A Johnson claim did not exist at the time Petitioner entered into
his plea agreement. To allow that argument to succeed would nullify plea agreements any time
there was a subsequent change of law that applied retroactively. The risk that a favorable change
in the law may occur is simply a part of the plea negotiation process that both parties accept.
The Court does not find, under the circumstances, that the enforcement of the collateralchallenge waiver in Petitioner’s Plea Agreement would entail a miscarriage of justice. Therefore,
the Court concludes that the waiver is enforceable and that Petitioner’s claim under § 2255 is
barred. Based on this ruling, the Court does not reach the parties’ other positions.
The Court further determines, under Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, that Petitioner has failed to make a substantial
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showing that he has been denied a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Accordingly, the Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that Respondent UNITED STATES’ MOTION TO
ENFORCE APPELLATE WAIVER IN THE PLEA AGREEMENT AND RESPONSE TO
DEFENDANT’S MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
(Doc. No. 8) will be granted, Petitioner Gilbert Gonzales’s MOTION TO CORRECT
SENTENCE UNDER 28 U.S.C. § 2255 (Doc. No. 1) will be DISMISSED with prejudice; a
certificate of appealability will be DENIED; and Final Judgment will be entered.

_________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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