United States v. Gonzalez

• Decision Date: 03 December 2019
• Docket Number: No. 17-40527,17-40527
• Citation: 943 F.3d 979
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gustavo GONZALEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

943 F.3d 979

UNITED STATES of America, Plaintiff–Appellee,

v.Gustavo GONZALEZ, Defendant–Appellant.

No. 17-40527

United States Court of Appeals, Fifth Circuit.

FILED December 3, 2019

John Richard Berry, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, John Moreno Parras, Kathryn Shephard, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

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.

I.

A.

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 pro-longed 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 F. App'x 188, 190 (5th Cir. 2014) (per curiam), cert. denied , 575 U.S. 907, 135 S. Ct. 1539, 191 L.Ed.2d 566 (2015).

B.

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, which the district court had previously denied.

II.

A.

"In an appeal from the denial of habeas relief, this court reviews a district court’s findings of fact for clear error and issues of law de novo ." Wilson v. Roy , 643 F.3d 433, 434 (5th Cir. 2011). "An [IAC] claim," such as this one, "presents a mixed question of law and fact." Richards v. Quarterman , 566 F.3d 553, 561 (5th Cir. 2009). "[T]he [reviewing] Court employs a de novo standard by independently applying the law to the facts found by the district court, as long as the district court’s factual determinations are not clearly erroneous." Id. "A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole." Id.

Because of conflicting evidence, whether there be a reasonable probability that Gonzalez would have pleaded guilty but for his constitutionally deficient counsel is ultimately a question of fact. In resolving such questions, we rely heavily on the district court’s judgment, although we review the record for clear error. See id.

B.

The Sixth Amendment provides "the right to the effective assistance of counsel." McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). That right "extends to the plea-bargaining process." Lafler v. Cooper , 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

To succeed on a claim that IAC "result[ed] in a rejection of [a] plea offer and the defendant’[s subsequent] convict[ion] at the ensuing trial," a defendant need satisfy a two-pronged test. Id. at 163, 132 S.Ct. 1376. First, he must show ineffectiveness, that "counsel’s representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he must establish prejudice, that "but for the ineffective advice of counsel there is a reasonable probability that," among other things, "the plea offer would have been presented to the court (i.e. , that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)." Cooper , 566 U.S. at 164, 132 S.Ct. 1376. "[R]easonable probability" means "a probability sufficient to undermine confidence in the outcome," Washington , 466 U.S. at 694, 104 S.Ct. 2052, but "less than a preponderance of the evidence," Dale v. Quarterman , 553 F.3d 876, 880 (5th Cir. 2008) (per curiam).

The parties agree that, by erroneously advising Gonzalez that a conviction under § 841(a)(1) requires the government prove the defendant knew the type and quantity of controlled substance he was trafficking, Gonzalez’s counsel performed in an objectively unreasonable manner. But it is disputed whether Gonzalez suffered prejudice. The relevant question is therefore whether there be a reasonable probability that Gonzalez would have accepted the government’s plea deal had he been counseled correctly as to the elements of the charged offense.

III.

Gonzalez asserts that he based his decision to stand trial on his attorney’s incorrect advice concerning what the government was required to prove. Although Gonzalez repeatedly expressed a desire to plead guilty, Gonzalez claimed in his ...