Gonzalez-Cortez v. United States of America

Filing 12

Memorandum Opinion and Order...the motion under 28 USC 2255 is denied; Certificate of Appealability is denied. (Ordered by Judge John McBryde on 6/18/2014) (wrb) (Main Document 12 replaced on 6/18/2014) (wrb).

> #

*

(yï-r-(;/)r.# . . . ..
L.t (tr. .l.s .. .
- . 3l,--.
L t jjg '
' k.k
z ' i --.
.

-

NORTfERN DI
'
I
STRI T OF 'El 4.
C'
it $
' tt

Fl E n
L s
--

IN THE UN ITED STATES DISTRIC

COUR

,
ï

FORT WORTH DIVISION

t

( CLE
B

, S I
U. STRI J kt .tJ
C - kr t

IN ITED STATES OF M ERICA
J

VS.

D' l'
? '
U' .
<
NO . 4 :l4 -CV-232-A

( . 4:
NO
l2-CR-048A)
JONOTHAN GONZALEZ-CORTEZ

MEMORANDUM OPINION
and
ORDER

Came on to be considered the motion of Jonothan Gonzalez-

Cortez (
umovantz pursuant to 28 U . C. 5 2255 to vacate, set
')
S.
aside , or correct sentence . Having reviewed the motion and

accompany ing memorandum of law , the record, the government 's
response , movant ' reply , and applicable legal authorities, the
s

court concludes that the motion should be denied .

Background

On May 5, 2012, movant pleaded guilty to illegal reentry
after deportation , in violation of 8 U . . .
S C

1326 . On August

2012, the court sentenced movant to a term of imprisonment of
87 months, to be followed by a three-year term of supervised

re lease . Movant appealed, but his attorney moved for leave to

withdraw under Andqrs v . California, 386 U . 738 (
S.
1967),
contending that there were no nonfrivolous issues for appellate

t
g>

@

*

review . Prior to the disposition of h is appeal, movant filed a

motion under 28 U . C . 5 2255, which the court dismissed without
S.

prejùdice. The Fifth Circuit dism issed movant's appeal, and he
did not seek certiorari review. United States v . Gonzalez-

Cortez, 538 Fed. App ' 592 (
x
5th Cir. 2013). Movant timely filed
the instant 5 2255 motion on April 3, 2014 .
II .

Grounds of the Motion
Mov ant asserts a variety of issues in h is motion , which the
court has grouped into seven categories :
calculation ;
track program ;

errors in sentencing

ineffecti
ve assistance of counsel;

fast

involuntary plea; ( due process and equal
5)

protection violations; and ( errors in imposing supervised
6)
release .

Analvsis
A.

Lpqal Standard for 28 U .S .C . î 2255
-

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands

fairly and finally convicted. United States v . Frady , 456

152, 164 (
1982); United States v . Shaid,

F . 228, 231-32
2d

(
5th Cir . 1991), cert. denied, 5O2 U.S. 1076 (
1992).

defendant

can challenge his conviction or sentence after it is presumed

*

*

final on issues of constitutional or jurisdictional.
. ;'
.
magnitude
only, and may not raise an issue for the first time on collateral
rev iew without showing b0th ncause' for his procedural default
'

and nactual prejudicez resulting from the errors. Shaid, 937
'
F .2d at 232 .

Section 2255 does not offer recourse to al1 who su ffer trial
errors . It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned , result in a complete

miscarriage of justice. United states v. Capua, 656 F. 1033,
2d
1037 (
5th Cir. Unit A Sept. 1981). In other words, a writ of
habeas corpus will not be allowed to do serv ice for an appeal .

Davis v . United States, 417 U . 333, 345 (
S.
1974).
B.

Sentencinq Calculation Claim s

Movant identifies several errors he believes were made in

the calculation 6f his senténce under the sentencing guidelines:
@

the court failed to consider the nature and
circumstances of his prior convictions, including
his age at the time of those offenseà;

@

the court failed to consider the sentencing
factors w ith respect to his prior convictions;

@

his prior conv ictions were unconstitutionally
obtained ;

*

his prior convictions were overstated and 'over
'

aggregated and improvidently adjudicated and not
3

@
'

*

serious fèloniesr' Memo . in Support of 5 2255 at
'
6;
*

he was actually innocent of the prior convictions ;

@

the court should have applied the Supreme Court
decisions of United States v . Descamps, l33 S . Ct .
2276 (
2013), and Apprendi v. New Jersev, 530 U.S.
466 (
2000), in evaluating the prior convictions;
and

@

his sentence is procedurally unreasonable because
of u
double counting ,' Memo . in Support of 5 2255
'
at 7, of his prior offenses in his base offense
level and criminal history score .

However , none of movant 's claims of error in the calculation
of his sentence are cognizable in a collateral proceeding .

'Section 2255 motions may raise only constitutional errors and
'

other injuries that could not have been raised on direct appeal
that will result in a miscarriage of justice if left
unaddressed,' and misapplications of the sentencing guidelines
'
are not cognizable on collateral review . United States v .

Williamson, 183 F.3d 458, 462 (
5th Cir. 1999); United States v .
Segler, 37 F. 1131, 1134 (
3d
5th Cir. 1994).
Further, movant's arugument that 'double -counting' of his
'
'
prior offenses renders his sentence unreasonable has beën clearly

rejected by the Fifth Circuit. See United States v .
castilleqa-olivo, 385 Fed. App ' 361, 362 (
'
5th Cir. 2010) (
x
per

curiam) (
citing Unsted States v. Duarte, 569 F.3d 528, 529-31
(
5th Cir.) cert. denied,

U.S.
4

130 S.

( 009)).
2

*

*

Finally , movant failed to raise any of these issues on

direct appeat and has provided no explanation for such failurex
Movant 'may not raise an issue for the first time on collateral
'
reviéw without show ing 50th l
cause ' for his procedural default,

and '
actual prejudice' resulting from the error.' Shaid, 937
'
F.2d at 232 (
quoting Frady, 456 U .S. at 168). Movant has shown
neither . Therefore, each of movant's sentencing calculation
claims must fail.
Ineffective Assistance of Counsel Claim s
. .

-

-

Movant asserts that his counsel was ineffective by :
@

failing to object at sentencing or request
application of Carachuri-Rosendo v . Holder , 130 S .
V
Ct . 2577 (
2010)7

@

nfailing to submit the stkongest argument or to

subject the prosecution to an adversary process,'
'
Memo . in Support of 5 2255 at 8 .
@

failing to consider movant's family situation and
to request a downward departure for cultural
assim ilation ;

@

failing to object to sentencing calculation errors
and to '
' overall none variance sentence ,' id . at
an
'
11 ;

@

failing to investigate Texas statutes and inspect
records (
raised in povant's reply); and

1Thecour not t tt deci i ofUnied St t v. De c mos 1 S. . 27 ( 3 , nd
t es ha he
sons
t
a es
s a , 33 Ct 2 6 201 ) a

Ap e v. w J re 5 0U. 46 ( 000 , r is db f r mova ' a a wa ds sedbyt
prndi Ne e s y, 3 S. 6 2 ) we e sue e o e
nts ppe l s imis
he
Fit Cicui.The ef e,t e ar ent wer avaiabl t hi a coul ha been r s att tm e of
fh r t
r or hos gum s e
l e o m nd
d ve
aied he i
hi appeal
s
.

*
@

*

telling movant that he would get early disposition
under the fAst track program (
raised in movant's

reply).
To prevail on an ineffective assistance of counsel claim ,

movant must show that ( counsel's performance fell below an
1)

objective standard of reasonableness and ( there is a
2)
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different .
Strickland v . Washington , 466 U . S. 668, 687 (
1984). Both prongs

of the Strickland test must be met to demonstrate ineffective

assistance. Id. at 697. Further, ' a) court need not address
'E
both components of an ineffective assistance of counsel claim
the movant makes an insu fficient showing on one .' Un ited States
'

v. Stewart, 207 F. 750, 751 (
3d
5th Cir. 2000).
'The likelihood of a different result must be substantial,
'

not just concéi
vablez' Harrington v. Richter, 131 S. Ct. 770, 792
'
(
2011), and a movant must prove that counsel's errors 'so
'
unde rmined the proper functioning of the adversarial process that
-

the trial cannot be relied on as having produced a just result.'
'
Culien v , Pinholster, 131 S. Ct. 1388, 1403 (
2011) (
emphasis in
orignal) (
quoting Strickland, 466 U . at 686). In the context
S.

of a guilty plea, prejudice requires movant to show uthere is a
reasonable probability that, bùt for counsel 's errors , he would
not have p leaded guilty and would have insisted on going to
6

*

*

trial.' Hill v . Lockhart, 474 U . 52,
'
S.

(
1985). Judicial

scrutiny of this type of claim must be highly deferential , and
movant must overcome a strong presumption that his counsel's
conduct falls within the wide range of reasonable professional
assistance . Strickland, 466 U .S . at 689.
First Claim
Movant first claims that his counsel was ineffective for

failing nto object at sentencing or request this Honorable Court
to apply carachuri-Rosendo v . Holder, 130 S. . 2577, 177 L.
Ct
Ed.

2d 68 (
2Q1O).' Memo. in Support of 5 2255 at
'

Carachuri-

Rosendo held that nwhen a defendant has been conv icted of a
simple possession offense that has not been enhanced based on the
fact of a prior conviction , he has not been lconvicted ' under 5

1229b ( 3) of a 'felony punishable' as such '
a)(
under the
Controlled Substances Act,' 18 U . C . 5 924 ( 2).'
S.
c)(
'
Carachuri-Rosendo v . Holder, 560 U. . 563, 582 (
S
2010). Movant

has failed to show how such a holding has any ap/licability to
his case , and it is well established that the failure to make a

frivolous or meritless objection cannot constitute ineffective
aàsistance of counsel . see United States v . Preston , 209 F .3d
-

783, 785 (
5th Cir . 2000). Further, movant does not explain how
an argument based on Carachuri-Rosendo would have made any

difference to the outcome of h is sentencing proceeding .

*

@
'

Accordingly, movant's claim fails to establish that his counsel's
assistance was ineffective .
Second Claim
Movant next claims that his counsel 'abandoned him at
'

sentencing by failing to submit the strongest argument or to
'
subj
ect t prosec
he
ution to an adversary process,' Memo. in
Support of 5 2255 at

However, movant does not explain what

arguments he believes should have been made or in what ways his

counsel failed to subject the government's case to an adversary
process. Because conclusory allegations are insufficient to
establish ineffective assistance of counsel, movant 's claim

fails . See Miller v . Johnson, 2O0 F . 274, 282 (
3d
5th

2000) .

Third Claim
Movant asserts that his counsel was ineffective for failing

to consider movant's family situation and failing to request a
downward departure for cultural assimilation . However , in the

objecti
ons to the presentence re
port, movant' attorney did ar
s
gue
for a downward departure based on culturàl assimilation. Def.'s

Sent. Memo. at 1-2. Further, at ïovant's sentencing, movanE '
s
attorney asked for ua sentence even below the guideline range
based on Mr . Gonzalez-cortez's cultural ties to the community .'
'
Sent . Tr . at 6 . Movant 's counsel asserted that although lperhap s
'

he may not meet every requirement in the departure provision,
8

*

*

the majority of factors do cut in his favor.' Sent.
'

at

see also Def .'s sent . Memo . at 2 . Movant offers no additional
facts to support a downward departure based on cultural

assimilation and does not explain what else he believes his
attorney should have argued on that issue . Therefore , movant's
claim is insufficient to show ineffective assistance of counsel .
See Miller , 200 F .
3d at 282 .
4.

Fourth Claim

Movant next faults his attorney for failing to object to
sentencing ucalculation error l and an overall none variance
s)
sentence .' Memo . in Support of 5 2255 at 11. Movant does not
'

identify what objections, other than one to uan overall none
variance sentence z' his counsel should have raised . Id . Movant
'
also fails to explain how the outcome of h is sentencing
proceeding would have been any different had his counsel made any

Eurther objections to the sentencing calculations, including the
one objection he suggests. Therefore, movant has failed to meet
the Strickland standard and has not shoWn that h is counsel's
assistance was ineffective . See Harrington ,

S.

at 792

C'
strickland asks whether it is '
reasonably likely' the result
would have been different .

The likelihood of a different

result must be substantial, not just conceivable.' Miller, 200
');
F.3d at 282 (nThis Court has made clear that conclusory
9

*

*

allegations of ineffective assistance of counsel do not raise a

constitutional issûe in a federal habeas proceeding .' .
o
5.

Fifth Claim

Movant's fifth claim for ineffective assistance of counsel,
which he raises in his reply , is that his counsel failed to

ninvestigate Texas statutes and fail l
ed) to inspect records.'
'
Reply at 8.

However , movant does not state which statutes he

believes his counsel should have investigated or why . Even
assuming that movant is referring to the statutes and records
underlying his prior convictions for burglary of a habitation ,
which movant addressed at length in his memorandum in support of
his motion , movant fails to explain what his counsel would have
uncovered through such an investigation and what difference it
would have made to the outcome of the sentencing proceeding or to

movant's decision to plead guilty . Therefore, mövant has failed
to show ineffective assistanèe of counsel . See Hill , 474 U .S . at

59 (Ml
Wlhere the alleged error of counsel is a fàilure to
investigate or discover potentially exculpatory evidence , the

determination whether the error '
prejudiced' the defendant by
causing him to plead guilty tather than go to trial will depend
on the likelihood that discovery of the ev idence would have led

counsel to change his recommendation as to the p1ea.'
'); United
States v . Green, 882 F.2d 999, 1003 (
5th Cir . 1989) C' defendant
A

*

*

who alleges a failure to investigate on the part of his counsel
must allege with specificity what the investigation would have

revealed and how it would have alteted the outcome of the

trial .') .
'
sixth Claim
Movant finally claim s, in his reply , that his counsel was
ineffective by telling movant that he would get early disposition
under the fast track program . However , movant does not allege

that had his counsel properly informed him about the fast track
program, he would not have pleaded guilty , but Would have

insisted on going to trial . Therefore , regardless of whether his

counsel's actions fell below an objective standard of
reasonableness, movant has not established ineffective assistance

of counsel because he has failed to show that he was prejudiced
by such actions . See Hill , 474 U .S . at
D.

Fast Track Program Claim
Movant claims that he should have been afforded an

opportunity to participate in a fas: track early disposition
Program . However, even assum ing that such a program was

available to movant, 'a defendant is not automatically entitled
.
to the benefits of the program .' United States v . Gomez-Herrera,
'
-

523 F . 554, 56l (
3d
5th Cir. 2008). Rather, ' tlhe government's
'E
decision to offer a fast track plea offer is no different from

*

*

the Attorney General 's prosecutorial discretion regarding Whether
to prosecute , What charge to file, whether to offer a plea
agreement , etc . These are areas generally left entirely to the

prosecutor's discretion .' Id . Under the fast track program and
'
the policy stated by the Department of Justice on January 3l,
2012 , the Un ited States Attorney has the discretion to limit or
deny a particular defendant's participation in a fast track
program based on a number of factors, including the defendant's

criminal history .

see Dept . Policv on Earlv Disposition or

uFast-Track Programs z' dated Jan . 3l, 2012 , available at
'

http:
//-

.
justice.
gov/dag/fast-track-program.
pdf.

Although movant asserts several vague arguments regarding

nthe fairness of limiting the Category VI and 'serious violent
felony' defendants to a maximum departure of two-levelsz'
'
bringing uFederal sentencing in conformity to equal value with

U. C. 5 3553( ( and 5 35i3( ( ' and '
S.
a) 1)
a) 6),'
'
adhering to the
rudimentary Fifth Amendment Rights of al1 Immigration related
defendants,' mofant gives no clear reason why he should have been
'
offered an opportunity to participate in a fast track program ,
especially in light of his substantial criminal history . Memo .
jn Support of J 2255 at 9 -10 .
.

Further , movant failed to raise this issue on direct appeal,

and he has shown no cause for such failure or actual prejudice
12

*

*

resulting from the error . Accordingly , this claim must fail .
See shaid , 937 F .
2d at 232 .

E.

Invalsd Plea
Movant contends that his uplea was not knowingly or

otherw ise unintelligibly made and the product of

misu l
ndlerstanding as it was when this court entered a judgment
reflecting conviction under 8 U.S. 5 l326( (
C.
b) 1), 5 l326( ( :
b) 2).'
Memo . in Support of 5 2255 at 10 . Apparently, movant's claim is

based on his assertion that his prior convictions did not nmeet
the definition of an aggravated felony under 8 U .S .C .

ll0l( (
a) 43),' therefore making his guilty plea one that was 'made
'
'

under duress and misrepresentation by Counsel.' I4 .
'
'To be knowing and intelligent , the defendant must have '
'
a
full understanding of what the plea connotes and of its
consequence .'' Un ited states v . Hernande z, 234 F .3d 252 , 255
'
-

(
5th Cir. 2000) (
quoting Bovkin v . Alabama, 395 U . . 238, 244
S

(
1969)). Specifically, ' t)he defendant need only understand the
'(
direct conseguences of the plea ; he need not be made aware every

consequence that, absent a plea of guilty , would not otherwise
occur .' Id .
'

'The consequences of a guilty plea , w ith respect to
'

sentencing , mean only that the defendant must know the maximum
prison term and fine for the offense charged .' United States v .
'

Pearson,

F.
2d

223 (
5th Cir. 1990) (
quoting United States
13

I

:4 (

v. Rivera, 898 F . 442, 447 (
2d
5th Cir.l990)) (
internal quotation
marks omitted). Therefore, nl
als long as (
the defendant)
understood the length of the time he m ight possibly receive , he

was fully aware of his plea' consequences.' Id. (
s
'
alteration in
original) (
quoting Rivera, 898 F. at 447) (
2d
internal quotation
marks omitted).
Here , movant clearly takes issue with the characterization
of his prior convictions for sentencing purposes . However ,
movant does not allege that he did not understand the direct

consequences of his decision to plead guilty , only that he did
not understand how his prior conv ictions would factor into his
sentencing calculation and that , apparently , his attorney failed

to adequately explain that to him . A review of the record shows
that at movant's rearraignment hearing , the court advised movant

of the penalties he would be subject to by pleading guilty to the
offense of illegal reentry after deportation , including ua term
of imprisonment of 20 years . . .; plus, payment of a fine of

$250,0007 plus, service of a term of supervised releaée . . .
that wouldn 't be any more than 3 years . . . ; plus, . . . a

special assessment of $100.' Rearraignment Tr . at 13. When
'

asked whether he understood that he would be subjecting himself
to all those penalties and punishments by pleading guilty , movant
answered, uYes, sir .'
'

Id . at l4 . The court also adv ised movant
14

*

*

that if he pleaded guilty but then ended up with a sentence that
was more severe than he had hoped

would be, movant would still

be bound by h is gu ilty plea, and mov ant testified that he
understood . Further, movant testified that no one had made any
promises or assurances to him of any kind in an effort to induce
him to enter a plea of guilty and that no one had mentally ,
physically , or in any other way attempted to force him to plead
guilty .

A defendant's representations, as well as those of his

attorney and the prosecutor, and any findings by the judge in
accepting a plea of guilty, nconstitute a formidable barrier in
any subsequent collateral proceedings .' Blackledge v . Allison ,
'

43l U.S. 63, 73-74 (
1977). Solemn declarations in open court
carry a strong presumption of truthfulness, and a defendànt bears

a heavy burden to show that the plea waé involuntary after
testifying to its voluntariness in open court. Deville v .

Whitley , 21 F . 654, 659 (
3d
5th Cir . 1994) (
citing Blackledqe,
at

Movant has provided no facts and presented no

evidence to show that, contrary to his assertions under oath, his

plea of guilty was anything other than knowing ànd voluntary.
His conclusory allegation that his plea was made under duress is
likewise completely without factual support .

Johnson, 201 F .
3d

See Matthew v .

365 (
5th Cir. 2000) ('
'The plea must be
15

entered 'voluntarily ,' i .e ., not be the product of 'actual or

threatened physical harm , or ... mental coercion overbearing the
will of the defendant ' or of state-induced emotions so intense
that the defendant was rendered unable to Weigh rationally his

options with the help of counsel.') (
' quoting Brady v. United

States, 397 U.S. 742, 7S0 (
1970). Therefore, movant's claim
fails .
F.

Due Process and Ecual Protection Claims
-

Although it is difficult for the court to make out movant 's
exact claims of constitutional v iolations , movant apparently

alleges violations of his due process and equal protection rights
under the Fifth and Fourteenth Amendments . Movant argues that

' illlegal reentry described in 8 U . . 5 1326( and illegal
'E
S C.
a)
reentry after a conviction of an aggravated felony described in 8

U.
S.C. 5 l326( (
b) 2), were separate criminal offenses and needs to
be set in an indictment and include each element of a crime as
chdrged .' Memo . in Support of 5 2255 at 12 . Movant further
'

asserts that recidivism is an element of the offense that must be
k

proven to a Jury beyond a reasonable doubt .

Movant's claiïs, which are comprised of little more than

conclusory allegations and disjointed statements of
constitutional law , are meritless . Contrary to movant's

assertion, his indictment clearly referenced violations of 50th 8
16

*

*

U.
s.c. 5 1j26( and 8 U. c. : 1326( (
a)
s.
b) 1)/(
2). êurther,
movant 's recidiv ism argument is foreclosed because the Supreme

Court has specifically held that prior convictions under 8 U . . .
S C

j 1326( 2) do not need to be proven to a jury beyond a
b)(
reasonable doubt. Almendarez-Torres v . United Statee, 523 U .
S.

235, 239-47 (
1998); see United Sxates v .
Rodriquez-Montelongo, 263 F.3d 429, 434-35 (
5th Cir. 2001).
Therefore , movant ' claims fail .
s
G.

Supervised Release

Movant asserts that a term of supervised release was not
warranted in his case . Movant could have raised this claim on

direct appeal, but did not, and he offers no explanation Eor his
failure to do so . Therefore , he may not raise it now . See

Shaid, 937 F . at 232 . Further, movant's argument is Without
2d
merit . Even in a case where a defendant is to be deported after
release from imprisonment , a term of supervised release may be

imposed as an additional sanction that might deter him from again
attempting to unlawfully reenter the United States. United

States v . Medina-Torres, 370 Fed. App' 554, 555 (5th Cir . 2010).
x
Also, Accordingly , his claim fails.

Xdditionally, movant mentions Ehat '
'
Movant is already in
'

violation of his supervised release , when he is sentenced because
;

of failure to abide with 18 U .S. 5 3583(
C.
f), as supervised

:#

*

*

release is an abuse of discretion when Movant received no notice

written or oral that he was subject to a standard condition.'
'
Memo . in Support of 5 2255 at 16 . It is unclear whether movant
is asserting that he did not receive notice of some condition of
supervised release or he is simply making a statement of supposed
law . Regardless, though , movant failed to raise this issue on
appeal and his conclusory allegation here must fail .
Evidentiary Hearinq
Finally , the court is denying movant's request for an

evidentiary hearing on his : 2255 motion because the motion,
files, and records of this case conclusively show that he is
entitled to no relief. See United States v . Cavitt, 550 F .
3d

430, 442 (5th Cir . 20G8).
IV .

Order

Therefore ,

The court ORDERS that the motion of Jonothan Gonzalez-cortez
to v acate , set aside, or correct sentence pursuant to 28 U .S .C . 5

2255 be, and is hereby , denied .

Pursuant to Rule 22 ( of the Federal Rules of Appellate
b)

Procedure, Rule 11 ( of the Rules Governing Section 2255
a)
Proceedings for the United states D istrict Courts , and 28 U .S . .
C

î 2253 ( (
c) 2), for the reasons discussed herein, the court further
18

*

*

*

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right .
SIGNED June

2014 .
#
y...

.

z.
.
*
.'
..
qè
.
r

>
.'

. v.'
. '
' .
.

pF
z

'
rd &N M . E
'
,
RYD
q
f
h
.
.'
nited States Distric
.

'
.'

2
/

19

#.*
y#
#

y
.
Judge

,
'
'

*

'
z'

e

z.
'
z
.