Gasparotto v. United States, CASE NO.: 16-22306-CV-SEITZ

• Decision Date: 14 December 2018
• Docket Number: CASE NO.: 16-22306-CV-SEITZ,CASE NO.: 04-20285-CR-SEITZ
• Parties: BRUNO GASPAROTTO, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

BRUNO GASPAROTTO, Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO.: 16-22306-CV-SEITZ

CASE NO.: 04-20285-CR-SEITZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 14, 2018

MAGISTRATE JUDGE PATRICK A. WHITE

REPORT OF MAGISTRATE JUDGE

I. Introduction

The movant, a federal prisoner, filed this motion to vacate, pursuant to 28 U.S.C. §2255, challenging the constitutionality of his enhanced sentence as a career offender, entered in case no. 04-20285-Cr-Seitz, following the entry of a guilty plea. In support thereof, he relies upon the Supreme Court's decision in Johnson v. United States,¹ 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), made retroactively applicable to cases on collateral review on April 18, 2016, by Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). (Id.).

This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Cases in theUnited States District Courts.

Before the Court for review are the movant's §2255 petition (Cv DE# 1), his objections to a prior report (Cv DE# 11), his amended petition (Cv DE#14), the government's response (Cv DE#15), the Presentence Investigation Report ("PSI"), Statement of Reasons ("SOR"), along with all pertinent portions of the underlying criminal file.²

II. Claims

Construing the §2255 motion liberally as afforded pro se litigants pursuant to Haines v. Kerner, 404 U.S. 519 (1972), the movant raises the following grounds for relief in his various filings:

Claim 1: His conviction under 18 U.S.C. §924(c) is unlawful under the Supreme Court's decision in Johnson. (Cv DE#11:4-11).

Claim 2: He no longer qualifies as a career offender in light of Johnson. (Cv DE#1:4; Cv DE#11:11-15; Cv DE#14:2).

Claim 3: Amendment 798 can be applied retroactively to a person, like Petitioner, who was convicted and sentenced before the amendment took effect. (Cv DE#11:15-21; Cv DE#14:1).

III. Factual and Procedural Background

The factual proffer reveals as follows:

Beginning on or about February 12, 2004, Jorge Pelegrin met with an individual known to him as "Juan." Juan was, in fact, an undercover agent ("UC") with the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). In an early meeting, the UC explained to Pelegrin that he was a drug courier and wanted assistance robbing the house where he delivered the narcotics and that the robbery would involve 20-30 kilograms of cocaine. Over the course of several tape-recorded meetings, the UC and Pelegrin agreed and planned the robbery. Pelegrin and the UC agreed that they would split the cocaine after it was stolen. At the meeting on April 20, 2004, the UC told Pelegrin and Nicky Martinez that the drugs would arrive soon and that should expect to do the robbery when the drugs arrived. The UC met with Pelegrin and Martinez immediately before the robbery to show them the cocaine he was delivering. During the meeting, Martinez told the UC in a tape-recorded conversation that he had done robberies before and hoped this would be his last robbery. He also stated that he had a ski mask for use during the robbery and they had the "tools."

On or about April 21, 2004, the defendants—Jorge Pelegrin, Nicky Martinez, and Bruno Gasparotto (as well as co-defendant Gardin)-traveled to meet "Juan" so the cocaine could be examined before the anticipated robbery. When the conspirators arrived in the designated meeting place in the Kendall area of Miami-Dade County in the Southern District of Florida, they were arrested. Pelegrin and Martinez had left the car to inspect the cocaine when arrested. Gasparotto and Gardin were in the car when they were arrested.

In a subsequent recorded conversation among the defendants in the back of the police van, all the defendants acknowledged that they knew about the guns found in the trunk of the car in which he was a passenger and participated in conversations about what false stories should be told to the police. In a post-arrest interview, Gasparotto stated that his role in the offense was to act as a driver for the other defendants, that he knew there were guns in the trunk, the plan was to rob "20-30 kilos," and that he was offered to be paid for hisrole in the offense.

The two firearms recovered from the trunk of the vehicle-a Colt .38 caliber handgun and an FEG 9mm handgun-were manufactured outside the state of Florida and traveled in interstate or foreign commerce to reach Florida.

The defendants undertook these actions knowingly and willfully and in violation of 21 U.S.C. §846 and 18 U.S.C. §924(c).

(Cr DE# 62, Factual Proffer). The AUSA, defense counsel, and Petitioner signed the proffer on August 20, 2004. (Id.).

On May 10, 2004, Petitioner was charged with conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§846 and 841(b)(1)(A) (Count 1); attempt to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§846, 841(b)(1)(A) and 18 U.S.C. §2 (Count 2); conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. §1951(a) (Count 3); attempted Hobbs Act Robbery, in violation of 18 U.S.C. §1951(a) (Count 4); conspiracy to possess a firearm in furtherance of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. §924(o) (Count 5); using a firearm in furtherance of a crime of violence and a drug trafficking crime, as set forth in counts 1, 2, 3, & 4, in violation of 18 U.S.C. §924(c)(1)(A) (Count 6); and possession of a firearm by a convicted felon (Count 9). (Cr DE# 18). Petitioner pled guilty to Counts 1 and 6 pursuant to a plea agreement on August 20, 2004. (Cr DE# 60).

Prior to sentencing, a Pre-Sentence Investigation report was issued. Petitioner's base offense level was set at 34 because the offense involved at least 15 kilograms, but not more than 50 kilograms of cocaine. (PSI ¶26). The base offense level wasdecreased by three levels based on a mitigating role adjustment, §3B1.2. (Id.).

Pursuant to §4B1.1(a), Petitioner was a career offender because he was at least 18 years old at the time of the instant offense, the instant offense was a felony that was a controlled substance offense, and Petitioner had at least two prior felony convictions which constituted "crimes of violence." (PSI ¶32). Specifically, the PSI relied on state court convictions for aggravated assault with a firearm in case no. F94007535, burglary of an unoccupied dwelling in case no. F94033938, aggravated assault with a firearm in case no. F96017364, and burglary of an unoccupied dwelling in case no. F0029983. (PSI ¶¶32,38,43,46,47).

The offense level was decreased by three points for acceptance of responsibility. (PSI ¶33-34). The total offense level was set at 34. (PSI ¶35).

Next, the PSI revealed that the movant had 19 criminal history points, resulting in a criminal history category VI. (PSI ¶51). Furthermore, as a career offender, he automatically had a criminal history category VI, §4B1.1. (PSI ¶52).

Statutorily, as to count one, the minimum term of imprisonment was 10 years and the maximum term was life, 21 U.S.C. §841(b)(1)(A); as to count 6, a term of not less than 5 years was to run consecutively to any other term of imprisonment under 18 U.S.C. §924(c)(1)(A). (PSI ¶94). Based upon a total offense level of 34 and a criminal history category of VI, the guideline imprisonment range was 262 months to 327 months. (PSI ¶95). As to count 6, a term of imprisonment of 60 months was to run consecutive to any other term of imprisonment. (PSI ¶95).

The court sentenced Petitioner to 168 months' imprisonment³ as to count 1 and to 60 months' imprisonment as to counts 6, to run consecutively for a total of 228 months. (CV DE# 79).

Petitioner appealed, arguing that the district court violated Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. ___ (2005) by imposing his sentence under a mandatory sentencing regime. On October 3, 2005, the Eleventh Circuit affirmed in part and reversed in part the movant's judgment. (Cr-DE#123). The District Court entered an amended judgment on November 18, 2005 sentencing the Petitioner to 127 months' imprisonment as to count 1 and to 60 months' imprisonment as to counts 6, to run consecutively for a total of 187 months. (CR DE# 127). No direct appeal was prosecuted. Thus, the judgment became final on Friday, December 2, 2005, when the 10-day period for prosecuting a direct appeal expired.⁴

Therefore, for purposes of the federal limitations period, the movant had one year from the time his conviction became final on Friday, December 2, 2005, or no later than Monday, December 4, 2006, within which to timely file this federal habeas petition. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also,See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the limitations period should be calculated according to the "anniversary method," under which the limitations period expires on the anniversary of the date it began to run); accord United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003); United States v. Marcello, 212 F.3d 1005, 1008-09 (7th Cir. 2000)). Applying the anniversary method to this case means petitioner's limitations period expired on November 28, 2006.

After proceedings not relevant to the timeliness issue herein, the movant waited approximately eleven years from the time his conviction became final on December 4, 2005 until he returned to this court, filing the instant motion on June 16, 2016.⁵ (Cv-DE#1).

After the Court reviewed the movant's initial §2255 motion (Cv-DE#1), an Order (Cv-DE#5) appointing counsel and setting briefing schedule was entered. The movant, through counsel, filed a motion to stay in light of Beckles v. United States, ___ U.S. ___, ___ S.Ct. ___, 2017 WL...