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United States v. Gillies

United States District Court, D. Massachusetts

November 20, 2018

UNITED STATES OF AMERICA
v.
JOHN GILLIES, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Petitioner John Gillies (“Gillies” or “Petitioner”) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the “Petition”), alleging ineffective assistance of counsel. D. 137. The government opposes the Petition. D. 140. For the reasons discussed below, the Court DENIES the Petition.

         II. Standard of Review

          A prisoner may seek post-conviction relief under § 2255 if his sentence “(1) was imposed in violation of the Constitution (2) was imposed by a court that lacked jurisdiction (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). It is the Petitioner's burden to make out a claim for such relief. Id.

         III. Factual and Procedural Background

         With the assistance of a confidential informant (“CI”), federal agents arranged for a controlled delivery of a large load of marijuana from Mexico to Arizona. Id. ¶ 8-9. Once the marijuana arrived in Arizona, the undercover agents took possession and transported the contents to Massachusetts. Id. ¶ 9. The CI received instructions from a source in Mexico to call a particular telephone number and the CI tendered this number to the undercover agent. Id. The undercover agent subsequently called the number and arranged to meet with a then-unidentified male in Revere, Massachusetts. Id. ¶ 10. On April 11, 2013, three Mexican men, together with Gillies, arrived in two vehicles at a parking lot in Revere. Id. At this meeting, Gillies informed the undercover agent that the money Gillies was required to pay for the undercover agent's transportation services was not ready, but that it would be ready later that evening. Id. Thereafter, the undercover agents maintained surveillance of Gillies who drove to Everett, Massachusetts and made several telephone calls at a pay phone. Id. ¶ 11. Gillies was subsequently observed engaging in a brief conversation with another male at a parking lot in Saugus, Massachusetts. Id. The next day, April 12, 2013, Gillies met again with the undercover agent and handed the agent approximately $79, 000.00 in cash for transportation costs. Id. ¶ 12. At this meeting, the undercover agent provided Gillies with a “sample” of the marijuana for Gillies' inspection. Id. ¶ 12.

         Luis Lastra-Barrios, another individual from Mexico, was engaged to do the transportation of the marijuana to Gillies. Id. ¶ 13. Soon after gaining possession of the marijuana, the agents had Lastra-Barrios stopped by the Massachusetts State Police in Everett, Massachusetts. Id. The seized marijuana weighed approximately 1, 022.68 kilograms (2, 254.60 pounds). Id. Lastra-Barrios was charged in state court and received a sentence of two and half years imprisonment for trafficking over fifty pounds of marijuana. Id. at n.3.

         Initially, Gillies was also arrested and charged in state court on November 20, 2013. He was detained there until he was charged by complaint in this matter. D. 4. On January 23, 2014, Gillies was charged in a three-count indictment charging him with conspiracy to possess with intent to distribute 1, 000 kilograms or more of marijuana (“Count I”), attempt to possess with intent to distribute 1, 000 kilograms or more of marijuana (“Count II”) and possession of marijuana with intent to distribute (“Count III”). D. 15. On May 1, 2015, Gillies moved to suppress evidence seized as a result of various warrants obtained and executed during the course of the agents' investigation. D. 77. After hearing, D. 90, 92, 93, 95, the Court denied the motion. D. 97; D. 130 at 5-11 (stating reasons for ruling on the record).

         On June 18, 2015, Gillies pled guilty to as much of Counts I and II that charged conspiracy and attempt to possess with intent to distribute 50 kilograms or more of marijuana, respectively, and the entirety of Count III. D. 99; PSR ¶ 2.

         In connection with his sentencing, the Probation Department calculated his base offense level based upon the total amount seized in April 2013 as well as marijuana later seized from Gillies' vehicle, residence and storage lockers at the time of his arrest in November 2013: 1, 000 to 3, 000 kilograms, PSR ¶ 28, for an advisory Guideline Sentencing Range (“GSR”) (with acceptance of responsibility) of 100-125 months. Id. ¶ 114. Gillies argued at sentencing that only 100 to 400 kilograms of marijuana should be attributable to him, accounting for the marijuana seized from him in November 2013, but only a portion of the shipment seized in April 2013 (namely, approximately 180 kilograms of that shipment which would correspond with $79, 000, the sum of money that Gillies gave to the undercover agents), D. 118 at 11-12; D. 119 at 71, for a GSR (with acceptance of responsibility) of 57-71 months. After hearing from counsel about this dispute on the first day of the sentencing on September 16, 2015, D. 118, the Court agreed to hold an evidentiary hearing, as Gillies was seeking, as to his awareness of the total quantity of marijuana that was to be involved in the April 2013 transport. Id. at 27.

         At the October 7, 2015, second day of sentencing, the Court held the evidentiary hearing regarding this issue. D. 119. The undercover agent in the case who had participated on April 11-12, 2013 meeting with Gillies and the others regarding the transportation of the load of marijuana (approximately 2375 pounds) testified. D. 119 at 4, 15, 29. During his conversation, which were in Spanish with Paco and English with Gillies, Gillies did make reference to when he was going to get his “400, ” id. at 27-28, 31, which the undercover agent understood to be a reference to 400 pounds, not kilograms. Id. at 32. At the end of hearing, it was clear that the facts were largely undisputed since the government did not dispute that the quantity that Gillies was going to take was a smaller portion of the larger load (namely, 400 pounds), but it took the position that given the facts and circumstances of the recorded exchanges with Gillies, the entirety of the load was reasonably foreseeable to him and should be attributed to him for the purposes of calculating the GSR. D. 119 at 69, 75. The government recommended a sentence of 100 months. D. 119 at 71.

         On October 14, 2015, the third and last day of sentencing, the Court in announcing sentence, adopted Gillies' position and rejected the government's position as to quantity of marijuana attributable to him for sentencing purposes. D. 120 at 7-8. Accordingly, the Court ruled that the amount attributable to him was 100 to 400 kilograms and, with three levels off for acceptance of responsibility, was a total offense level of 21. Id. at 8. With Gillies' Criminal History Category of IV, the advisory GSR was 57-71 months. Considering all of the factors under 18 U.S.C. 3553(a), including but not limited to Gillies' “history of drug trafficking, ” the Court sentenced him to 70 months imprisonment, 3 years of supervised release, no fine, a mandatory special assessment and forfeiture. D. 120 at 9; D. 113.

         Gillies filed a timely notice of appeal on October 27, 2015. D. 115. On appeal, Gillies' counsel filed an Anders brief indicating that she was “unaware of any legal issues of merit that can be pursued in an appeal.” United States v. John Gillies, No. 15-2296, March 25, 2016 entry. By summary disposition, the First Circuit concluded that Gillies had “knowingly, intelligently, and voluntarily entered an unconditional guilty plea on June 18, 2015, thereby waiving all appellate rights other than jurisdictional errors and the length of his sentence, ” that there ...


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