Gonzalez v. USA

Filing 13

OPINION AND ORDER.....William Marcos Gonzalezs October 28, 2014 petition for a writ of habeas corpus is denied. In addition, a certificate of appealability shall be not granted. The petitioner has not made a substantial showing of a denial of a fed eral right and appellate review is, therefore, not warranted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. &# 167; 1915(a)(3), any appeal from this Opinion and Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 1/21/2016) Copy Mailed By Chambers to William Marcos Gonzalez. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
WILLIAM MARCOS GONZALEZ,
:
Petitioner,
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:
-v:
:
:
UNITED STATES OF AMERICA,
Respondent.
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14cv8760 (DLC)
13cr0007 (DLC)
OPINION AND ORDER

APPEARANCES:
For the Petitioner:
William Marcos Gonzalez, pro se
67699-054
Federal Correctional Institution
33.5 Pembroke Rd.
Danbury, CT 06811
For the Respondent:
James M. McDonald
Assistant United States Attorney
One Saint Andrews Plaza
New York, NY 10007
DENISE COTE, District Judge:
On October 24, 2014, William Marcos Gonzalez (“Gonzalez”)
timely filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2255. 1

On May 12, 2015, the Court denied one of his

three claims and converted another into a motion for a reduced
sentence under 18 U.S.C. § 3582(c)(2).

1

The remaining claim in

The petition was docketed on October 28, 2014.

Gonzalez’s petition is for ineffective assistance of counsel.
For the following reasons, the petition is denied.
Background
On June 28, 2013, Gonzalez pled guilty to a charge of
conspiracy to distribute five kilograms of cocaine in violation
of 21 U.S.C. § 841(b)(1)(A).

The conspiracy was alleged to have

run from December 1 to December 6, 2012.

This charge carried a

mandatory minimum sentence of five years.

Because of a change

in Department of Justice policy, the Government allowed Gonzalez
to plead guilty to violating 21 U.S.C. § 841(b)(1)(C), an
offense carrying no mandatory minimum.

On October 11, 2013,

Gonzalez pled guilty to that lesser included offense and was
sentenced principally to 108 months in prison.

His Guidelines

range was 108 to 135 months, based on an offense level of 29 and
a Criminal History Category of III.
Four offenses contributed to Gonzalez’s Criminal History
Category.

Two of these prior convictions were for Unlawful

Possession of Marihuana in violation of N.Y. Penal Law §§ 221.05
and 221.1 respectively, the first in March 2005 and the second
in April 2009.

Two others were convictions for Driving While

Ability Impaired (“DWAI”), in violation of N.Y. Vehicle and
Traffic Law § 1192.1.

The first was in March 2006 and the

second was in October 2008.

All four offenses were non-criminal

violations or infractions, except for his second marijuana
2

conviction which was a Class B Misdemeanor.

None of them

resulted in imposition of a term of imprisonment.
Gonzalez did not appeal his federal conviction.

Gonzalez’s

original petition contained three primary grounds for relief:
(1) his attorney had a conflict of interest because his plea
agreement waived his right to claim ineffective assistance of
counsel on appeal; (2) counsel was ineffective because the plea
agreement waived his right to petition for resentencing under 18
U.S.C. § 3582(c); and (3) he received ineffective assistance of
counsel because his attorney did not challenge the validity of
the uncounseled state court convictions that increased his
criminal history score.

On May 12, 2015, the Court denied the

petition’s first claim and converted Gonzalez’s second claim
into a motion for resentencing under 18 U.S.C. § 3582(c) (“May
Opinion”).

The May Opinion held that Gonzalez’s attorney did

not have a conflict of interest because his plea agreement did
not prohibit Gonzalez from alleging ineffective assistance of
counsel during the procedures that led up to his plea of guilty.
The May Opinion separately scheduled his converted motion for a
reduced sentence and requested that the Government respond to
Gonzalez’s remaining argument.

On November 20, Gonzalez’s

motion for a reduced sentence was granted and his sentence was
lowered to 87 months’ imprisonment.

3

On July 22, the Government filed its opposition to the
remaining claim in the petition, that is, his attorney’s failure
to challenge the validity of uncounseled state court
convictions.

On September 3, Gonzalez’s reply was docketed.

Gonzalez’s reply raised two arguments regarding his prior
convictions that were not articulated in his original petition.
Gonzalez argued that his attorney should have been aware of
Second Circuit precedent that would have required the court to
exclude his DWAI convictions from his criminal history
calculation.

See United States v. Potes-Castillo, 638 F.3d 106

(2d Cir. 2011).

He further argued that his attorney was

ineffective because he failed to explain that Gonzalez could
challenge his marijuana convictions in state court and that
successful challenges would lower his criminal history score.
On September 17, the Court gave the Government an additional
opportunity to respond to these new arguments.

The Government’s

response was filed on October 16, and Gonzalez’s reply was
received and docketed on December 17. 2

In his reply, Gonzalez

raised a new argument: that his attorney was ineffective for
failing to seek a departure under Guidelines § 4A1.3 because
On October 28, the Gonzalez filed his initial response pursuant
to the September 17 Order. Gonzalez’s filing alleged that the
Government failed to respond to the Court’s September 17 Order,
when in fact the Government did file a response that Gonzalez
had not received. In light of the delay in receiving the
Government’s filing, the Court granted Gonzalez’s motion for an
extension of time to reply and struck his October 28 reply.
2

4

Gonzalez’s Criminal History Category overstated the severity of
his prior crimes.

Although this argument was raised for the

first time in Gonzalez’s reply, the Opinion will address it on
the merits. 3
Discussion
The law of ineffective assistance of counsel is wellsettled.

In order to prevail on a claim of ineffective

assistance of counsel, Gonzalez must make two showings:
First, he must demonstrate that his counsel's
representation “fell below an objective standard of
reasonableness.” Second, he must establish that he
suffered prejudice —- in this context, meaning that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. 2015) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
“Because counsel must avoid both failing to give advice and
coercing a plea, counsel’s conclusion as to how best advise a
client enjoys a wide range of reasonableness.”
omitted).

Id. (citation

To demonstrate prejudice, the petitioner must show “a

reasonable probability that the end result of the criminal
process would have been more favorable by reason of a . . .
sentence of less prison time.”

Kovacs v. United States, 744

While Gonzalez’s October 24, 2014 petition was timely, the
Court does not find that the new arguments raised in his
September 3 or December 17, 2015 submissions are timely.
3

5

F.3d 44, 51-52 (2d Cir. 2014) (citing Missouri v. Frye, 132 S.
Ct. 1499, 1410 (2012)).

Ultimately, “each case is a context-

specific application of Strickland directed at a particular
instance of unreasonable attorney performance.”

Id. at 52.

Gonzalez argues that his counsel was ineffective in four
ways: (1) his attorney did not investigate or challenge his
uncounseled state court convictions, each of which contributed
to his criminal history score; (2) his attorney did not argue
for the exclusion of his prior DWAI convictions from his
criminal history score; (3) his attorney failed to advise him
that if he successfully challenged the validity of his marijuana
convictions in state court then they would no longer count
towards his criminal history score; and (4) his attorney failed
to argue for a departure under Guidelines § 4A1.3.

Assuming

without deciding that each of these claims is timely, they are
denied.

Gonzalez has not shown that his attorney’s conduct fell

below an objective standard of reasonableness or that his
attorney’s conduct caused prejudice.
I. Uncounseled Prior Convictions
Gonzalez’s first argument is that his attorney’s
representation was deficient for failing to investigate his
uncounseled state court convictions and attack their validity as
part of his sentencing calculation.

As the May Opinion noted,

“[t]o the extent that [Gonzalez] attacks his prior conviction as
6

part of his sentencing proceedings, he can do so only if the
prior conviction is constitutionally infirm under the standards
of Gideon v. Wainwright, 372 U.S. 335 (1963).”
Sharpley, 399 F.3d 123, 126 (2d Cir. 2005).

United States v.

In other words,

Gonzalez must allege an “actual deprivation of counsel” in
violation of the Constitution.

Id.

All four of the state court convictions that contributed to
his criminal history score were either misdemeanors or noncriminal violations, none of which resulted in a term of
imprisonment.

“Where . . . a defendant is convicted of a

misdemeanor and no jail term is imposed, no sixth amendment
right to counsel attaches.”
F.2d 496, 499 (2d Cir. 1991).

United States v. Castro-Vega, 945
Because Gonzalez had no

constitutional right to counsel in his state court convictions,
his attorney could not have successfully challenged their
contribution to his criminal history score on this ground.
II.

DWAI Convictions

A defendant’s criminal history score is governed by
Guidelines § 4A1.2.

Section 4A1.2(c)(1)-(2) lists certain

categories of offenses that are presumptively excluded from the
criminal history score absent special circumstances.

Included

in this list are crimes such as “careless or reckless driving,”
which is only counted if it is sufficiently serious, and “minor
traffic infractions,” which are never counted.
7

Id.

Application

Note 5 to Guidelines § 4A1.2 makes it clear that “[c]onvictions
for driving while intoxicated or under the influence (and
similar offenses by whatever name they are known) are always
counted, without regard to how the offense is classified.”

See

United States v. Mason, 692 F.3d 178, 182 (2d Cir. 2012) (“We
construe the guideline and its commentary together.” (citation
omitted)).

Thus, driving under the influence invariably

increases a defendant’s criminal history score, even where it is
classified as a misdemeanor or petty offense.
Gonzalez therefore cannot show either that his attorney’s
performance was deficient for failing to argue for the DWAI
convictions’ exclusion or prejudice resulting from that failure.
Application Note 5 makes it clear that Gonzalez’s DWAI
convictions would add to his criminal history score irrespective
of any argument to the contrary.

Had defense counsel made an

application to exclude the DWAI convictions, the application
would have been denied.
Gonzalez argues that United States v. Potes-Castillo, 638
F.3d 106 (2d Cir. 2011), shows that his attorney should have
argued for the exclusion of his DWAI convictions from his
criminal history score.

Potes-Castillo discussed an earlier

version of Application Note 5, however, and the Guidelines were
amended in November 2012 to make it explicit that DWAI
convictions always count towards a defendant’s criminal history
8

score.

See United States Sentencing Commission, Amendments to

the Sentencing Guidelines 35 (Apr. 30, 2012) (stating that the
change to Application Note 5 “resolves differences among
circuits regarding when prior sentences for misdemeanor offenses
of driving while intoxicated . . . are counted,” citing PontesCastillo).

The amended version of Application Note 5 was in

effect during the latter part of the conspiracy to which
Gonzalez pled guilty and when Gonzalez was sentenced in October
2013, meaning that his DWAI convictions would have increased his
guidelines range notwithstanding his attorney’s possible
arguments to the contrary.
III. Challenging State Court Convictions
Gonzalez next argues that his attorney was ineffective for
failing to advise him that he could challenge his marijuana
convictions in state court.

If those challenges were successful

and the marijuana convictions expunged, his criminal history
score would be reduced, resulting in a lower guideline range.
United States v. Cox, 245 F.3d 126, 130 (2d Cir. 2001) (expunged
convictions “are not to be counted” in a defendant’s criminal
history score); Guidelines § 4A1.2(j).
It is unnecessary to decide the extent to which defense
counsel is required to explore the validity of a client’s prior
convictions since Gonzalez has not shown that the prior
convictions were constitutionally infirm.
9

Although they were

obtained without counsel, no attorney was required.

He has not

presented any evidence of a viable constitutional challenge to
the state statutes he was convicted of violating, nor has he
shown any other procedural or substantive defect in those
convictions.

Gonzalez has not shown that there is a reasonable

probability that his state court convictions would have been
expunged or overturned, thus resulting in a lower criminal
history score. 4

Accordingly, Gonzalez has not shown that he was

prejudiced by his attorney’s failure to advise him to challenge
his prior convictions.
IV.

Departure Under Guidelines § 4A1.3

In his most recent reply, Gonzalez argues that his attorney
was ineffective for failing to seek a departure on the grounds
that his Criminal History Category vastly overstated the
severity of his prior crimes.

The version of Guidelines §

4A1.3(b)(1) that was effective at Gonzalez’s sentencing provided
that: “If reliable information indicates that the defendant’s
criminal history category substantially over-represents the
seriousness of the defendant’s criminal history . . . a downward
departure may be warranted.”

Such a downward departure is

limited to the “lower limit of the applicable guideline range
If Gonzalez “successfully vacates his prior conviction through
state . . . collateral challenges, he may also seek to have his
present sentence reopened, although success in that endeavor is
not guaranteed.” Sharpley, 399 F.3d at 126.
4

10

for Criminal History Category 1.”

Id. § 4A1.3(b)(2)(A).

As

Gonzalez acknowledges in his reply, the lowest sentence he could
have received under a § 4A1.3 departure was 87 months’
imprisonment.
Gonzalez’s argument that his attorney was ineffective for
failing to seek such a departure does not have merit.

Gonzalez

has not shown that his attorney’s failure to request such a
departure caused prejudice.

If the departure had been sought

and granted, Gonzalez’s sentencing range would have been 87 to
108 months’ imprisonment.

On November 20, 2015, his sentence

was reduced to 87 months under Amendment 782 to the Guidelines,
which went into effect on November 1, 2014.

In applying the

Amendment, his offense level was reduced to 27 and his Criminal
History Category remained at III.

Even if Gonzalez had

originally been sentenced pursuant to a Guidelines § 4A1.3
departure -- and therefore received a sentence of 87 months’
imprisonment in 2013 -- the Court could not have re-applied that
departure when it considered his motion for a reduced sentence
under 18 U.S.C. § 3582(c)(2).

In other words, under Amendment

782, the new guideline range would still have been determined
using Criminal History Category III.

Application Note 1(A) to

Guidelines § 1B1.10(b)(1) states that the applicable guideline
range “is determined before consideration of any departure
provision” in the Guidelines.

See United States v. Erskine, 717
11

F.3d 131, 137 n.6 (2d Cir. 2013) (finding that Guidelines §
1B1.10 prevents district courts from “apply[ing] a previous
variance or departure to sentence outside the reduced Guidelines
range unless the defendant previously received a downward
departure based on substantial assistance to the Government”).
The lower limit of the Court’s ability to resentence Gonzalez is
therefore 87 months’ imprisonment, even if counsel had
successfully made an application for a § 4A1.3 departure at the
outset.

Thus, Gonzalez has not satisfied the prejudice prong of

Strickland and this ground for his habeas petition is denied.

12

Conclusion
William Marcos Gonzalez’s October 28, 2014 petition for a
writ of habeas corpus is denied.

In addition, a certificate of

appealability shall be not granted.

The petitioner has not made

a substantial showing of a denial of a federal right and
appellate review is, therefore, not warranted.

Hoffler v.

Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d
24, 24 (2d Cir. 1990).

Pursuant to 28 U.S.C. § 1915(a)(3), any

appeal from this Opinion and Order would not be taken in good
faith.

Coppedge v. United States, 369 U.S. 438, 445 (1962).

The Clerk of Court shall close the case.
Dated:

New York, New York
January 21, 2016

__________________________________
DENISE COTE
United States District Judge

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Copies sent to:
William Marcos Gonzalez
67699-054
Federal Correctional Institution
33.5 Pembroke Rd.
Danbury, CT 06811

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