Gonzalez v. USA
Filing
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OPINION & ORDER...Gonzalezs petition did not afford adequate notice of the nature of the arguments in his September 3 response. Accordingly, the Government will be given an opportunity to respond to the two arguments identified here that were made in Gonzalezs September 3 memorandum. (Signed by Judge Denise L. Cote on 9/17/2015) Copies Mailed By Chambers to William Marcos Gonzalez. (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
WILLIAM MARCOS GONZALEZ,
:
Movant,
:
:
-v:
:
:
UNITED STATES OF AMERICA,
Respondent.
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:
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14cv8760 (DLC)
13cr0007 (DLC)
OPINION & ORDER
DENISE COTE, District Judge:
This Opinion addresses a petition brought by William Marcos
Gonzalez (“Gonzalez”) for a writ of habeas corpus pursuant to 28
U.S.C. § 2255.
Gonzalez seeks to be resentenced after his
sentencing guideline range is recalculated with a lower criminal
history category than that on which the Court relied when it
sentenced him to 108 months’ imprisonment on October 11, 2013.
For the following reasons, the Government will be given an
opportunity to address the argument.
On June 28, 2013, pursuant to a plea agreement with the
Government, Gonzalez pleaded guilty to conspiring to distribute
a controlled substance involving 500 grams of cocaine in
violation of 21 U.S.C. § 841(b)(1)(B).
This charge carried a
mandatory minimum term of imprisonment of five years.
The Pre-Sentence Report (“PSR”) records that Gonzalez had
four prior criminal convictions from 2004 to 2009; it assigned
one criminal history point to each conviction.
With four
points, it placed Gonzalez in criminal history category III.
Two of these convictions were for Unlawful Possession of
Marihuana in violation of N.Y. Penal Law 221.5, the first in
March 2005 and the second in April 2009.
traffic offenses.
Two others were
The first was a March 2006 conviction for
Speeding, in violation of N.Y. Vehicle and Traffic Law 1180, and
for Driving While Ability Impaired (“DWAI”), in violation of
N.Y. Vehicle and Traffic Law 1192.1; the second was an October
2008 conviction for DWAI.
All four offenses were misdemeanors;
none of them resulted in imposition of a term of imprisonment.
Defense counsel did not object to the PSR.
Because of a change in Department of Justice policy, the
Government offered Gonzalez the opportunity to plead guilty to
an offense carrying no mandatory minimum.
Therefore, on October
11, Gonzalez agreed to a new plea agreement with the Government
that permitted him to plead guilty to a violation of 21 U.S.C. §
841(b)(1)(C), a narcotics distribution charge that does not
carry a mandatory minimum term of imprisonment.
The Guidelines
range remained 108 to 135 months, and as part of the plea
agreement, Gonzalez agreed not to challenge his sentence so long
as it did not exceed 135 months’ imprisonment, either by filing
a direct appeal, bringing a collateral challenge pursuant to 28
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U.S.C. § 2241 or § 2255, or seeking a sentence modification
pursuant to 18 U.S.C. § 3582(c).
Gonzalez pleaded guilty to the (b)(1)(C) count, and was
sentenced that same day principally to 108 months in prison.
Gonzalez did not appeal his conviction.
One year later, Gonzalez timely filed a petition, received
on October 24, 2014, for a writ of habeas corpus pursuant to 28
U.S.C § 2255.
Gonzalez seeks to be resentenced.
In his
petition, Gonzalez asserted that his attorney operated under a
conflict of interest in negotiating the plea agreement since the
agreement waived Gonzalez’s right to bring a habeas petition
asserting that the attorney was ineffective.
Gonzalez also
brought two other ineffective assistance claims: his attorney
failed to advise him that he was waiving the right to be
resentenced under recently amended Guidelines 1 and failed to
investigate, or otherwise discuss, the validity of his prior
state court convictions because they “were obtained without
counsel.”
Effective November 1, 2014, the United States Sentencing
Commission amended the United States Sentencing Guidelines
Manual to lower the guideline sentencing range for certain
categories of offenses involving drugs. The Sentencing
Commission also adopted an amendment to § 1B1.10 of the
Guidelines, effective November 1, 2014, which authorized
retroactive application of the amendment to the drug guidelines.
1
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In an Opinion of May 12, 2015, the Court denied Gonzalez’s
petition to the extent that it was premised on the existence of
a conflict of interest.
Gonzalez v. United States, No. 13cv007
(DLC), 2015 WL 2211696, at *2 (S.D.N.Y. May 12, 2015).
Gonzalez’s claim based on the amendments to the Guidelines was
converted to a petition for a reduction of sentence.
Id.
In an
Order of May 12, that motion was denied without prejudice to
renewal by January 6, 2017 or thereafter.
By Order of May 12,
the U.S. Attorney’s Office was directed to respond to the
remaining claim asserting ineffective assistance in connection
with Gonzalez’s uncounseled prior convictions.
The U.S. Attorney’s Office responded on July 22, 2015.
The
response describes each of Gonzalez’s prior convictions and
argues that Gonzalez had no right to counsel in the proceedings
resulting in those convictions because each “was a misdemeanor
for which Gonzalez received no term of imprisonment.”
He
therefore could not have been deprived of effective assistance
of counsel in the instant case because the failure to challenge
those convictions could not have caused prejudice.
Gonzalez submitted a memorandum in opposition to the
Government’s response, which was received September 3.
In it,
he raises several arguments regarding his prior convictions that
were not articulated in his petition.
First, he argues that he
was deprived effective assistance of counsel because his
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attorney failed to challenge the Government’s use of his two
prior DWAI convictions in calculating his criminal history
category.
Gonzalez contends that the Second Circuit’s decision
in United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011),
is controlling authority of which his attorney should have been
aware, and that applying Potes-Castillo would have resulted in
the exclusion of his DWAI convictions from criminal history
category calculations under U.S.S.G. § 4A1.2(c)(1) and thereby
placed him in a lower criminal history category.
Second, Gonzalez argues that he was denied effective
assistance of counsel because his attorney failed to explain
that Gonzalez could challenge his marijuana possession
convictions in parallel state court proceedings as a means of
lowering his criminal history category.
Had his attorney done
so, Gonzalez asserts, Gonzalez would have successfully expunged
or vacated his state marijuana convictions and lowered his
sentencing guidelines range.
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Gonzalez’s petition did not afford adequate notice of the
nature of the arguments in his September 3 response.
Accordingly, the Government will be given an opportunity to
respond to the two arguments identified here that were made in
Gonzalez’s September 3 memorandum.
Dated:
New York, New York
September 17, 2015
________________________________
DENISE COTE
United States District Judge
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Copies sent to:
William Marcos Gonzalez
6799-054
Federal Correctional Institution
33.5 Pembroke Rd.
Danbury, CT 06811
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