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United States v. Gonzalez

United States Court of Appeals, Fifth Circuit

December 3, 2019

GUSTAVO GONZALEZ, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, DENNIS, and HAYNES, Circuit Judges.


         Gustavo Gonzalez appeals the denial of his motion to vacate his conviction and sentence based on ineffective assistance of counsel ("IAC"). Because the district court's reading of the facts was not clearly erroneous, we affirm.



         U.S. Border Patrol agents discovered that Gonzalez, a truck driver, was hauling not only electronics but also over 1, 500 kilograms of marihuana. Gonzalez was arrested and charged with possession with intent to distribute a controlled substance in excess of one thousand kilograms, in violation of 21 U.S.C. § 841(a)(1) (2012). Gonzalez agreed to plead guilty in exchange for the government's recommendation that he "be given maximum credit for acceptance of responsibility" and a within-guidelines sentence.

         At his rearraignment, Gonzalez expressed a desire to plead guilty. The government provided a lengthy recitation of the alleged facts, which Gonzalez admitted the government could prove. The district court then asked why Gonzalez was transporting over 1, 500 kilograms of marihuana, to which Gonzalez replied, "someone forced me to do that, sir." In response to the court's further questioning, Gonzalez claimed that he was transporting the drugs because his family in Matamoros, Mexico, was being threatened. That prompted the court both to explain the elements of a duress defense and to order a fifty-three-minute recess for Gonzalez and his attorney, Reynaldo Cisneros, to discuss whether to enter the guilty plea as previously planned. After that recess, Gonzalez stated before the court, "I want to go to trial."

         Three days later, the court held a final pretrial conference. After a prolonged discussion concerning the prerequisites for a duress instruction, the court informed Gonzalez that, although it would continue to accept a guilty plea, it would not accept a plea bargain past that afternoon. Cisneros stated he had "made that very clear" to his client and that he had "explained the consequences of [ ] going to trial." Of salience was the likelihood the government would file a sentencing enhancement based on Gonzalez's prior felony drug trafficking conviction, which would increase his minimum possible sentence from ten to twenty years.[1] At the court's suggestion, the government agreed to wait four days-until the first day of trial-to file a notice of sentencing enhancement.[2]

         Early on the first morning of trial, Gonzalez told U.S. marshals that he wished to speak with his attorney concerning whether he should plead guilty. Cisneros, however, arrived at the courtroom nearly four hours late, believing that the trial was scheduled to begin on a later day. In the interim, the government filed its notice of sentencing enhancement. The trial began shortly thereafter.

         Gonzalez testified that members of the Zetas cartel had threatened his family and forced him to carry the load of marihuana to satisfy a "debt." On cross-examination, Gonzalez clarified that such debt represented 109 pounds of the cartel's marihuana that was confiscated when he was caught transporting it seven years earlier.[3] Nevertheless, he claimed that, on the day of the arrest by the Border Patrol, he knew "nothing about" the cargo he was carrying, including whether it included marihuana or even a controlled substance generally.

         After deliberating for less than forty-five minutes, the jury found Gonzalez guilty of possession with intent to distribute more than one thousand kilograms of marihuana. The district court regretfully imposed the statutory minimum of 240 months' imprisonment followed by 10 years' supervised release. This court affirmed on direct appeal. United States v. Gonzalez, 584 Fed.Appx. 188, 190 (5th Cir. 2014) (per curiam), cert. denied, 135 S.Ct. 1539 (2015).


         This is a collateral attack whose incipit was a pro se motion Gonzalez filed under 28 U.S.C. § 2255, seeking habeas corpus relief by asserting that Cisneros's performance was constitutionally ineffective. Specifically, Gonzalez claimed Cisneros incorrectly told him that a conviction under § 841(a)(1) requires proof the defendant knew the type and quantity of the alleged controlled substance and that, but for such erroneous advice, Gonzalez would have pleaded guilty before the government filed its notice of sentencing enhancement. Appropriate relief, Gonzalez contended, would therefore effect a substantial downward revision of his sentence.

         The district court held two days of evidentiary hearings concerning Gonzalez's motion. Gonzalez testified that Cisneros originally counseled him to plead guilty but that, during the rearraignment hearing and in response to the court's discussion regarding a duress defense, Cisneros suggested Gonzalez pursue trial. Gonzalez further stated that Cisneros told him the government would have to prove he knew he was transporting marihuana specifically. Notwithstanding that, Gonzalez testified that, on the morning of his first day of trial, he "wanted to plead guilty and . . . stop the trial, because [he] felt that [Cisneros] was not ready" but that Cisneros's tardiness prevented him from doing so before the government filed its notice of enhancement.

         Cisneros also testified at the hearings, both corroborating and contradicting certain parts of Gonzalez's testimony. Cisneros admitted he incorrectly advised Gonzalez that a conviction would require the government to prove knowledge that the controlled substance both was specifically marihuana and was in excess of one thousand kilograms. Still, Cisneros contested the notion that he pushed Gonzalez to pursue trial, claiming that he counseled Gonzalez to plead guilty. Cisneros stated that it was in fact Gonzalez who wanted to present his case to a jury so that it could "hear the [cartel's] threats and the possibility of his duress defense." Even under his misunderstanding of the elements of the offense, Cisneros testified he told Gonzalez that the government's evidence was sufficient for a conviction.

         In a twenty-seven-page memorandum and order, the district court denied the § 2255 motion. This court then granted a certificate of appealability, ...

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