United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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
Standard of Review
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
Factual and Procedural Background
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.
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.
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
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.
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.
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
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.
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 ...