Rosario Gonzalez v. United States

Background

Julio Alfredo Rosario Gonzalez, representing himself, moved under 28 U.S.C. § 2255, a federal law that permits a person in federal custody to challenge a sentence, to vacate, set aside, or correct his sentence. He claimed that his sentencing lawyer, Evans D. Prieston, provided ineffective assistance by failing to: (1) present the effect of Rosario Gonzalez’s absence on his mother, fiancé, and son as a mitigating factor; (2) challenge the government’s reference to Rosario Gonzalez’s flight when law enforcement attempted to arrest him; and (3) argue that Rosario Gonzalez’s successful safety-valve proffer supported a lower sentence.

Rosario Gonzalez pleaded guilty to conspiracy to distribute and possess with intent to distribute fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). The parties stipulated to a final offense level of 27, zero criminal-history points, and an advisory sentencing range of 70 to 87 months. The plea agreement stated that the possible prison term ranged from zero to 20 years and included an appeal waiver for any prison sentence below 87 months. The court accepted the guilty plea after a proceeding in which a Spanish interpreter assisted Rosario Gonzalez.

Before sentencing, counsel submitted a sentencing memorandum seeking a 24-month sentence and cited Rosario Gonzalez’s difficult upbringing, family responsibilities, lack of a criminal record, legitimate employment, likely deportation, and family and community support. Counsel also submitted more than 20 support letters. At sentencing, counsel argued for a sentence below the Guidelines range, and the court imposed 60 months. The court cited the seriousness of the fentanyl offense but also considered Rosario Gonzalez’s assistance to law enforcement, successful safety-valve proffer, family and friends’ support, employment history, and expected deportation. After a later retroactive amendment to the Sentencing Guidelines, the court reduced the sentence to 57 months.

Court’s analysis

The court applied the two-part test from Strickland v. Washington. Under that test, a person challenging a lawyer’s performance must show both that the lawyer acted unreasonably under professional standards and that the alleged error created a reasonable probability of a different result.

The court rejected the family-hardship claim because counsel’s written sentencing memorandum discussed Rosario Gonzalez’s son and mother, his fiancé submitted a letter describing the effect of his absence, and the presentence report described his family responsibilities. The court also considered those circumstances and varied below the Guidelines range in part because of them. Counsel’s failure to repeat the argument expressly during the hearing did not make his performance unreasonable.

The court rejected the flight-related claim because the government referred to Rosario Gonzalez’s flight only when describing the underlying conduct, not when arguing for a longer sentence. The court likewise mentioned the flight only in describing the offense, not in explaining the reasons for the sentence. The court concluded that counsel could reasonably have decided not to emphasize the flight because doing so might have weakened the argument that Rosario Gonzalez accepted responsibility.

The court rejected the safety-valve claim because it had considered the proffer. The court explained that the safety-valve benefit was already reflected in the 70-to-87-month Guidelines range through a two-level reduction. The court also held that Rosario Gonzalez could not show prejudice: even if counsel had presented the proposed arguments differently, the court stated that the seriousness of the offense would not have supported a further reduction below the sentence imposed.

Disposition

The court held that the case records conclusively showed that Rosario Gonzalez was not entitled to relief and that no additional hearing was required. It denied Rosario Gonzalez’s motion under Section 2255 and dismissed the petition. The court also declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, and denied permission to appeal without paying filing fees. The court denied as frivolous Rosario Gonzalez’s request that it obtain and review his cell phone and rejected his assertion that he had not understood the plea agreement. The clerk was directed to close the civil case.