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Gonzalez v. United States

United States District Court, D. Massachusetts

October 4, 2017

JULIO GONZALEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION ON PETITIONER'S "MOTION TO VACATE UNDER 28 U.S.C. § 2255"

          Judith Gail Dein United States Magistrate Judge.

         I. INTRODUCTION

         This matter is before the court on petitioner's "Motion Under 28 U.S.C. § 2255." (Docket No. 651). By this pleading, the petitioner, Julio Gonzalez, is seeking to vacate his sentence as being unconstitutional. The government has opposed the petitioner's filing as being a second and successive habeas petition for relief. (See Docket No. 654). A review of the record establishes that this is Gonzalez's second habeas petition under 28 U.S.C. § 2255, and that he failed to obtain authorization for such a filing from the First Circuit Court of Appeals. Therefore, and for the reasons detailed more fully herein, this court recommends to the District Judge to whom this case is assigned that this habeas petition (Docket No. 651) be dismissed.

         II. STATEMENT OF FACTS

         Petitioner was determined by law enforcement to be a member of a violent kidnapping crew operating in Lawrence, Massachusetts that frequently targeted and abducted drug dealers Matter Not Available for ransom. (PSR ¶ 8).[1] He was charged in a Superseding Indictment, issued on May 16, 2013, with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c). (Docket No. 122). The Indictment arose out of the kidnapping on January 30, 2012 of "JP, " who had been held captive until a ransom was paid. (Id.; PSR ¶¶ 7-37) The incident involved the use of a firearm. (PSR ¶ 15).

         Gonzalez's Sentence

         Gonzalez pled guilty on November 20, 2014 to conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c). (Docket No. 445). The United States Probation Office determined that petitioner's overall offense level was 40, including enhancements for the ransom demand and use of a weapon. A three point reduction for acceptance of responsibility led to a total offense level of 37.[2] (PSR ¶¶ 43-53). Gonzalez was determined to have a criminal history category of II, based on two continuances without a finding for receiving stolen property and reckless endangerment of a child. (PSR ¶¶ 58-62). According to his PSR, Gonzalez's guideline range of imprisonment was 235 to 293 months. (PSR ¶ 94). On April 16, 2015, the court sentenced Gonzalez to a term of imprisonment of 192 months. (Docket No. 554).

         The First § 2255 Habeas Petition

         On April 17, 2015, petitioner appealed his sentence to the First Circuit Court of Appeals. (Docket No. 555). While his appeal was pending, on June 24, 2016, Gonzalez filed his first pro se "Motion to Vacate under 28 U.S.C. § 2255" with the District Judge, alleging that his sentence was unconstitutional and should be reduced pursuant to Johnson v. United States. 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (See Docket No. 618). In Johnson, the Supreme Court had ruled that imposing an increased sentence under the residual clause of the Armed Career Criminal Act of 1984 ("ACCA") was unconstitutional. Id. at 2563. The government opposed the § 2255 petition on the grounds that "the defendant's sentencing range was driven entirely by the kidnapping guidelines, " and "[had] not [been] enhanced because he was deemed to be an armed career criminal or a career offender." (Docket No. 624 at 2). Thus, according to the government, Johnson had no relevance to Gonzalez's sentence. (Id.).

         On October 11, 2016, the First Circuit issued a Judgment affirming Gonzalez's sentence. (Docket No. 633). On October 26, 2016, the District Court denied Gonzalez's motion and dismissed his § 2255 petition. (Docket No. 635). Gonzalez appealed the dismissal of his petition to the First Circuit on November 14, 2016. (Docket No. 637). The First Circuit requested that the District Court issue or deny a certificate of appealability, a necessary predicate for Gonzalez to appeal the denial of his habeas petition.[3] (See Docket No. 641). The District Court declined to issue the certificate of appealability, finding that Gonzalez had failed to establish that "reasonable jurists could debate" the merits of his contention that Johnson mandated that he be resentenced. (Docket No. 645 at 2). Thus, the District Court concluded, Johnson was inapplicable because Gonzalez had not been sentenced as an Armed Career Criminal under the ACCA. (Id.). In addition, Gonzalez had failed to put forth "any specific bases for vacating his sentence" under Johnson. (Id. at 3).

         On February 14, 2017, while the appeal of his first habeas petition was pending before the First Circuit, Gonzalez filed the instant motion under 28 U.S.C. § 2255 (the "second habeas petition"). (Docket No. 651). Thereafter, on May 24, 2017, the First Circuit also refused to issue a certificate of appealability to allow Gonzalez to pursue the dismissal of his first habeas petition and his Johnson claim. (Docket No. 669). As the First Circuit ruled, "petitioner has failed to make the requisite showing that reasonable jurists could find debatable or wrong the district court's assessment of his claim." (Id. (citing Slack v. McDaniel. 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000))).

         In his second habeas petition, Gonzalez again challenges the enhancement of his sentence based on the ransom demand and use of a dangerous weapon. While the grounds for his challenge are not entirely clear, he does challenge the enhancement as being unconstitutional under Mathis v. United States. 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). (Docket No. 651 at 1). He also reiterates his argument that under Johnson, he "no longer qualifies for an enhanced sentence" and that the imposition of the enhancement "violates due process and should be vacated, set aside or corrected." (Id. at 2).

         Additional facts will be provided ...


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