Gonzales v. United States of America

Filing 3

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Anthony R Gonzales. The Motion to Vacate (Doc. No. 290) is herebyDENIED. Signed by Honorable David L. Russell on 2/17/17. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ANTHONY GONZALES,
Defendant.

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No. CR-12-288-R
CIV-16-574-R

ORDER
Defendant Anthony Gonzales pled guilty to possession of methamphetamine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). In his Plea Agreement, Defendant
indicated he understood that he had the right to appeal his judgment and sentence, and that
in exchange for promises and concessions by the United States, he was knowingly and
voluntarily waiving that right. His plea agreement stated, in part, that he was waiving the
right to “[a]ppeal or collaterally challenge his guilty plea, sentence and restitution imposed,
and any other aspect of his conviction, including but not limited to any rulings on pretrial
suppression motions or other pretrial dispositions of motions and issues. . . .” Plea
Agreement, ¶ 8(a). The agreement further specified that he was waiving his right to appeal
or collaterally challenge any sentence imposed within or under the advisory guideline
range. Id. at ¶ 8(b). At his December 27, 2012 hearing to change his plea from “not guilty”
to “guilty,” Defendant acknowledged that he was foregoing the right to appeal, with limited
exception.

Despite his waiver, Defendant now seeks to challenge the 120-month sentence
pursuant to Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), wherein the Supreme
Court held that the residual clause of the Armed Career Criminal Act was
unconstitutionally vague. Defendant contends that pursuant to Johnson his sentence, which
was enhanced pursuant to Section 4B1.1 of the sentencing guidelines rather than the Armed
Career Criminal Act, cannot stand, because his prior convictions for assault and battery
and first degree burglary should no longer be considered a crime of violence for purposes
of enhancing his sentence.1 The United States filed a Motion to Enforce the Collateral
Attack Waiver, or Alternatively, Motion to Dismiss (Doc. No. 294), to which no objection
has been filed. The Court hereby GRANTS the Motion of the United States, and as a result
DENIES Mr. Gonzales’ § 2255 motion.
According to the Government, Defendant knowingly and voluntarily waived his
right to challenge his sentence collaterally via § 2255, as set forth in the plea agreement.
The Government further contends that even if Defendant did not waive his rights, his claim
lacks merit as Johnson is inapplicable given that burglary is an enumerated offense and
therefore the Court did not rely on the residual clause.
The Tenth Circuit, in United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001), held that “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 waiver were knowingly and voluntarily made.” However, the enforcement of an

  Defendant’s sentence was enhanced pursuant to § 4B1.1 of the Sentencing Guidelines. He raises an additional
non-Johnson issue regarding his sentence. The Court’s Order applies to each of the claims raised in the Motion.

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appellate or collateral review waiver is subject to exception where a miscarriage of justice
would occur. United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004). The Tenth
Circuit has identified four situations where a miscarriage might occur:
[1] where the district court relied on an 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. (internal quotation marks omitted). With regard to the fourth situation, error making the
waiver unlawful, the error must “seriously affect the fairness, integrity or public reputation
of judicial proceedings.” Id. at 1329.
First, upon consideration of the language of the plea agreement and the Rule 11 plea
colloquy that Defendant’s waiver was both knowing and voluntary. Additionally, because
Defendant did not respond to the motion, there are no allegations regarding any of the four
exceptions set forth in Hahn. There are no allegations that the Court relied upon race or
that counsel was ineffective with regard to negotiation of the waiver. Furthermore,
Defendant’s sentence did not exceed the statutory maximum. Finally, the Court concludes
that the waiver was not otherwise unlawful.
The Tenth Circuit recently considered the “otherwise unlawful” exception in United
States v. Frazier-LaFear, --- Fed.Appx. ---, 2016 WL 7240134 (10th Cir. Dec. 15, 2016).
The court emphasized that “‘[t]his exception looks to whether the waiver is otherwise
unlawful, not to whether another aspect of the proceeding may have involved legal error.’”
Id. at *2 (quoting United States v. Polly, 630 F.3d 991 (10th Cir. 2011)(quoting United

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States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (internal quotation marks omitted)).
In concluding that a change in the law does not alter the analysis, the Tenth Circuit stated:
The essence of plea agreements ... is that they represent a bargained-for
understanding between the government and criminal defendants 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, an
undesirable outcome given the importance of plea bargaining to the criminal
justice system.
Id. (quoting United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005).
Additionally, the waiver can be applied to error of constitutional magnitude. Id.
(citations omitted). The Court finds here, as in Frazier-LeFear, that there are no grounds
for holding that the waiver of rights executed by Defendant in this case was unlawful. “The
fact that [his] relinquishment of [the right to attack his sentence] results in the lost
opportunity to raise a constitutional challenge under Johnson reflects the natural operation,
not the invalidity, of the waiver.” Id. at 4. Although Frazier-LeFear is unpublished, and
therefor merely persuasive, the Court finds the concluding paragraph predictive of this
issue before the entire Tenth Circuit:
Our precedent directs that appeal/collateral review waivers are enforceable
(1) with respect to claims of error that do not render the waiver itself
unlawful, even if the alleged error (2) arises out of a subsequent change in
law and (3) is of a constitutional dimension. Unless and until this court
disavows one of these basic premises, waivers of the sort at issue in this case
must be enforced when timely raised by the government
Id. at *5.

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Accordingly, for the reasons set forth herein, the United States’ Motion to Enforce
(Doc. No. 294) is hereby GRANTED. The Motion to Vacate (Doc. No. 290) is hereby
DENIED.
IT IS SO ORDERED this 27th day of February, 2017.

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