Gonzalez v. United States

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 8:05-cr-188-SDM-AEP

8:19-cv-1033-SDM-AEP

ANTONIO SAUL GONZALEZ

____________________________________

ORDER

Antonio Saul Gonzalez moves under 28 U.S.C. § 2255 to vacate his

conviction and sentence for possession with intent to distribute fifty grams or more of

cocaine base, for which he is imprisoned for fifty-seven months.

Gonzalez pleaded guilty, and the district court sentenced him to 240 months

followed by 120 months of supervised release. (Crim. Doc. 36) The district court

granted the United States’ motion under Rule 35(b), Federal Rules of Criminal

Procedure, to reduce the sentence for substantial assistance and reduced the sentence

to 151 months of prison. (Crim. Doc. 52) The district court granted Gonzalez’s

motion under 18 U.S.C. § 3582(c)(2) to retroactively apply new sentencing guidelines

for crack cocaine and further reduced the sentence to seventy-six months of prison.

(Crim. Doc. 69)

After Gonzalez served his prison sentence and began serving his supervised

release, an information charged Gonzalez with possession with intent to distribute

five-hundred or more grams of cocaine, possession with intent to distribute twenty-

eight or more grams of cocaine base, and possession of a firearm in furtherance of a

drug trafficking crime. United States v. Gonzalez, No. 8:18-cr-179-VMC-AEP (M.D.

Fla.), ECF No. 1. Gonzalez pleaded guilty to the crimes and received a sentence of

ninety-three months. 8:18-cr-179-VMC-AEP, ECF Nos. 3 and 29.

In this action, Gonzalez admitted violating the terms of supervised release by

committing the three new crimes, by submitting three urine specimens that tested

positive for the presence of cocaine, by submitting a fourth specimen that tested

positive for the presence of cocaine and marijuana, by failing to truthfully respond to

a question by a probation officer, and by failing to lawfully work. (Crim. Doc. 87)1

Gonzalez faced a sentencing guideline range of forty-six to fifty-seven months.

8:18-cr-179-VMC-AEP, ECF No. 41 at 4. The United States recommended sixty

months, the statutory maximum because of the serious nature of the violations and

Gonzalez’s lengthy criminal history. 8:18-cr-179-VMC-AEP, ECF No. 41 at 5–8.

Because of Gonzalez’s acceptance of responsibility and his recent cooperation with

law enforcement, trial counsel asked for a sentence concurrent with the earlier

ninety-three-month sentence. 8:18-cr-179-VMC-AEP, ECF No. 41 at 8–11.

The district court revoked supervised released, sentenced Gonzalez to

fifty-seven months, and ordered the sentence consecutive to the earlier sentence.

(Crim. Doc. 87) Gonzalez did not appeal and instead moves under Section 2255 for

1 A transcript of the revocation hearing is docketed at Entry Number 41 in 8:19-cr-179-VMC-

AEP.

relief. Gonzalez asserts that trial counsel was ineffective for not investigating his

mental health, for not calling mental health experts to testify at the revocation

hearing, and for not moving for either a downward departure or a downward

variance based on his need for medical care. (Doc. 1 at 3–8)

I. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

“‘[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.’” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668, 687 (1984), governs an

ineffective assistance of counsel claim and places a heavy burden on a defendant:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . .

to address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697.

2 Before moving under Section 2255, Gonzalez moved under the First Step Act of 2018 for

a sentence reduction. (Crim. Docs. 88 and 105) The district court denied the motion (Crim. Doc.

109), the court of appeals affirmed, and the U.S. Supreme Court vacated the appellate opinion and

remanded for consideration of Concepcion v. United States, 142 S. Ct. 2389 (2022). United States v.

Gonzalez, 9 F.4th 1327 (11th Cir. 2021), vacated, 142 S. Ct. 2900 (2022). The pending appeal does not

deprive the district court jurisdiction over this collateral matter. Weaver v. Fla. Power & Light, Co.,

172 F.3d 771, 773 (11th Cir. 1999).

A defendant cannot meet his burden merely by showing that the avenue

chosen by counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21

(11th Cir. 1992). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690. “[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91.

“An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” 466 U.S. at 691. To meet this burden, the defendant must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

II. GROUND ONE

Gonzalez asserts that trial counsel was ineffective for not investigating his

mental health, for not calling mental health experts to testify at the revocation

hearing about his need for medical care, and for not moving for either a downward

departure or a downward variance based on his need for medical care. (Doc. 1

at 3–8) Attached to his motion are a psychiatric evaluation from Phoenix House,

which is a drug addiction treatment center, and photographs of medication

prescribed to him. (Doc. 1-1) The district court required as a condition of supervised

release that Gonzalez participate in a drug treatment program. (Crim. Doc. 36 at 4)

The evaluation states that Gonzalez reported that he suffered from anxiety after

witnessing several murders in prison and that he continued to experience anxiety

after his release from prison. (Doc. 1-1 at 9)

Failure to Investigate Mental Illness

Gonzalez asserts that trial counsel was ineffective for not investigating his

mental illness. Attached to Gonzalez’s motion is a cover letter by trial counsel

requesting medical records from Phoenix House. (Doc. 1-1 at 1) The cover letter is

dated March 2, 2018, six months before Gonzalez’s revocation hearing on

September 4, 2018. (Crim. Doc. 87 and Doc. 1-1 at 1) Trial counsel submitted with

the cover letter a medical authorization signed by Gonzalez on February 6, 2018.

(Doc. 1-1 at 2–4) Phoenix House responded to trial counsel’s request and disclosed

the psychiatric evaluation. (Doc. 1-1 at 5–11) Gonzalez identifies no other

documents that trial counsel should have discovered from further investigation.

Because the record demonstrates that trial counsel investigated Gonzalez’s mental

health and because “‘[s]peculation is insufficient to carry the burden of a habeas

corpus petitioner as to what evidence could have been revealed by further

investigation,’” the claim is both refuted by the record and meritless. Brownlee v.

Haley, 306 F.3d 1043, 1060 (11th Cir. 2002) (quoting Aldrich v. Wainwright, 777 F.2d

630, 636 (11th Cir. 1985)).

Also, the evaluation states that Gonzalez denied suffering from depression,

suicidal or homicidal ideation, or psychosis. (Doc. 1-1 at 5) Gonzalez reported

experiencing nightmares and feeling scared when his heart beats rapidly several times

a day. (Doc. 1-1 at 5) He denied seeking treatment from a psychiatrist, taking

medication, or suffering from a mental illness that required involuntary commitment.

(Doc. 1-1 at 6) Also, trial counsel represented Gonzalez in the earlier criminal

action.3 (Crim. Doc. 87) The presentence report, filed in that case on June 21, 2018,

more than two months before the revocation hearing in this action, states that

Gonzalez “indicated that he has no problems with either his mental or emotional

health and that he has never received mental health treatment.” 8:18-cr-179-VMC-

AEP, ECF No. 23 at 19.

Because Gonzalez denied suffering from mental illness and denied receiving

treatment for mental illness, Gonzalez cannot demonstrate that no reasonable

3 Gonzalez filed a Section 2255 motion in the other criminal action and raised a similar

ineffective assistance of counsel claim. Gonzalez v. United States, No. 8:19-cv-756-VMC-AEP (M.D.

Fla.), ECF No. 1. The district court denied the motion, and the court of appeals denied a certificate

of appealability. 8:19-cv-756-VMC-AEP, ECF Nos. 8 and 12.

counsel would have failed to investigate his mental illness. Strickland, 466 U.S.

at 691 (“[W]hen a defendant has given counsel reason to believe that pursuing

certain investigations would be fruitless or even harmful, counsel’s failure to pursue

those investigations may not later be challenged as unreasonable.”); Chandler v.

United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (“[B]ecause counsel’s conduct is

presumed reasonable, for a petitioner to show that the conduct was unreasonable,

a petitioner must establish that no competent counsel would have taken the action

that his counsel did take.”).

Failure to Call Mental Health Experts

Gonzalez asserts that trial counsel should have called mental health experts to

testify at the revocation hearing about his need for medical care. Because he fails to

identify an expert witness who was available to testify and fails to substantiate the

testimony of that witness, the claim is both facially deficient and speculative.

McKiver v. Sec’y, Fla. Dep’t Corrs., 991 F.3d 1357, 1365 (11th Cir. 2021) (“[W]e have

held that a petitioner’s own assertions about whether and how a witness would have

testified are usually not enough to establish prejudice from the failure to interview or

call that witness.”) (citing Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006));

Bray v. Quarterman, 265 F. App’x 296, 298 (5th Cir. 2008) (“To prevail on such

a claim, the petitioner must name the witness, demonstrate that the witness was

available to testify and would have done so, set out the content of the witness’s

proposed testimony, and show that the testimony would have been favorable to

a particular defense.”) (citing Alexander v. McCotter, 775 F.2d 595, 602

(5th Cir. 1985)).

Failure to Move for a Downward Departure

Gonzalez asserts that trial counsel should have moved for a downward

departure based on his need for mental health treatment and cites Amendment 738

to United States Sentencing Commission Guidelines. (Doc. 1 at 5–8) The

amendment revised Note 6 of Section 5C1.1 with the following:

There may be cases in which a departure from the sentencing

options authorized for Zone C of the Sentencing Table (under

which at least half the minimum term must be satisfied by

imprisonment) to the sentencing options authorized for Zone B

of the Sentencing Table (under which all or most of the

minimum term may be satisfied by intermittent confinement,

community confinement, or home detention instead of

imprisonment) is appropriate to accomplish a specific treatment

purpose. Such a departure should be considered only in cases

where the court finds that (A) the defendant is an abuser of

narcotics, other controlled substances, or alcohol, or suffers

from a significant mental illness, and (B) the defendant’s

criminality is related to the treatment problem to be addressed.

In determining whether such a departure is appropriate, the

court should consider, among other things, (1) the likelihood

that completion of the treatment program will successfully

address the treatment problem, thereby reducing the risk to the

public from further crimes of the defendant, and (2) whether

imposition of less imprisonment than required by Zone C will

increase the risk to the public from further crimes of the

defendant.

Because Gonzalez violated the terms of supervised release, the zones in the

Sentencing Table in Chapter Five did not apply at the revocation hearing. The

district court sentenced him based on the guideline range provided in the table in

Section 7B1.4. Even if the sentencing table in Chapter Five applied, Gonzalez’s

offense level of 25 and Criminal History Category V placed him in Zone D. (Crim.

Doc. 66 at 3) Because the revision in Amendment 738 offered Gonzalez no relief,

trial counsel was not ineffective for failing to file a meritless motion based on the

amendment. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017)

(“[A]n attorney will not be held to have performed deficiently for failing to perform

a futile act, one that would not have gotten his client any relief.”).4

Failure to Move for a Downward Variance

Lastly, Gonzalez asserts that trial counsel should have requested a downward

variance under 18 U.S.C. § 3553(a) based on his need for medical care and should

have cited Amendment 738 as persuasive authority to justify the variance. Because

Gonzalez admitted violating the terms of supervised release by possessing crack

cocaine and powder cocaine, by possessing a firearm, and by submitting four urine

specimens which tested positive for the presence of cocaine, the district court’s

imposition of a term of imprisonment was mandatory under 18 U.S.C. § 3583(g).

(Crim. Doc. 87) “‘[W]hen revocation of supervised release is mandatory under

18 U.S.C. § 3583(g), the statute does not require consideration of the Section 3553(a)

factors.’” United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000), abrogated on

other grounds by Tapia v. United States, 564 U.S. 319 (2011) (citation omitted) (italics in

original). Consequently, Gonzalez could not demonstrate a reasonable probability

that the result of the revocation hearing would have changed if trial counsel had

moved under Section 3553(a) for a downward variance. Strickland, 466 U.S. at 694.

4 Gonzalez also cites Section 5K2.13 (Doc. 1 at 5) but in his reply “maintains that Section

5K2.13 is not an issue in this case.” (Doc. 10 at 2) Consequently, he abandoned his claim based on

Section 5K2.13.

“Chapter 7 of the Sentencing Guidelines governs violations of probation and

contains policy statements, one of which provides recommended ranges of

imprisonment applicable upon revocation.” United States v. Silva, 443 F.3d 795, 799

(11th Cir. 2006). “While the district court is required to consider the policy

statements, it is not bound by them.” 443 F.3d at 799. “[U]pon determining that a

defendant violated a condition of supervised release, the district court may revoke the

term of supervision and impose a term of imprisonment after considering various

factors set out in 18 U.S.C. § 3553(a).” United States v. Campbell, 473 F.3d 1345, 1348

(11th Cir. 2007) (citing United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005)).

See also 18 U.S.C. § 3583(e)(3).

Section 3553(a)(2)(D) requires a district court, when imposing a sentence, to

consider “the need for the sentence imposed — to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in

the most effective manner.” However, Gonzalez neither identifies a doctor who

treated him nor describes the treatment that the doctor determined was medically

necessary. The report attached to his motion did not recommend treatment and

reported that Gonzalez suffered only anxiety. (Doc. 1-1 at 5–9) Because Gonzalez

does not demonstrate that a motion for a downward variance would have succeeded,

trial counsel was not ineffective. Pinkney, 876 F.3d at 1297.

Gonzalez’s advisory guideline range was forty-six to fifty-seven months based

on a Criminal History Category V. 8:18-cr-179-VMC-AEP, ECF No. 41 at 4. At the

revocation hearing, the prosecutor informed the district court that the probation

officer had administered thirty-five drug tests to Gonzalez, fifteen were inconclusive

because the specimens were diluted and four revealed that Gonzalez violated the

terms of his supervised release by abusing drugs. 8:18-cr-179-VMC-AEP, ECF No.

41 at 5. Gonzalez lied to the probation officer for several months by falsely reporting

that he enrolled and attended a vocational training program. 8:18-cr-179-VMC-

AEP, ECF No. 41 at 6. While on supervised release, Gonzalez fled from police

during a traffic stop while possessing over twenty-eight grams of crack cocaine, over

five-hundred grams of powder cocaine, and a loaded pistol. 8:18-cr-179-VMC-AEP,

ECF No. 41 at 6.

At the revocation hearing, the prosecutor described Gonzalez’s lengthy

criminal history. When Gonzalez was fifteen, a state court adjudicated him guilty of

robbery and aggravated battery. 8:18-cr-179-VMC-AEP, ECF No. 41 at 7. During

the commission of those offenses, Gonzalez’s accomplice shot one victim in the back

and shot a second victim in the finger. 8:18-cr-179-VMC-AEP, ECF No. 41 at 7.

After his release from prison, Gonzalez committed more crimes, including fleeing

and attempting to elude law enforcement, possessing cocaine, possessing drug

paraphernalia, resisting arrest with violence, and resisting arrest without violence.

8:18-cr-179-VMC-AEP, ECF No. 41 at 7.

In mitigation, trial counsel informed the district court that Gonzalez promptly

waived his right to an indictment for the new crimes, pleaded guilty, and cooperated

with law enforcement. 8:18-cr-179-VMC-AEP, ECF No. 41 at 9. Gonzalez’s

cooperation with a state prosecutor against an inmate in the jail where he was

pretrial detained resulted in the resolution of the inmate’s criminal case. 8:18-cr-179-

VMC-AEP, ECF No. 41 at 9. Gonzalez provided information to a detective and an

FBI agent about a homicide, provided information to a federal prosecutor about

credit card fraud, and provided information to staff at the jail about an aggravated

battery. 8:18-cr-179-VMC-AEP, ECF No. 41 at 9–10. In the earlier action, the

prosecutor moved under Section 5K1.1 for a reduction in the sentence because

Gonzalez provided substantial assistance in a multi-defendant case. 8:18-cr-179-

VMC-AEP, ECF No. 41 at 10.

Also, at the revocation hearing, Gonzalez described how serving time in

prison affected his mental health, 8:18-cr-179-VMC-AEP, ECF No. 41 at 13:

[Court:] I will have to say, Mr. Gonzalez, that

from my standpoint and I bet you from

Ms. Gomez’s and probably from a lot of

other people’s it looks to me like you do

have a drug abuse problem that’s causing,

you know, your life to — causing you to

lose a lot of things in life that you

otherwise would have, not the least of

which is your freedom. But you continue

to say that you don’t have a drug problem.

[Gonzalez:] Well, I take psychological meds too. I was

diagnosed with — Ms. Gomez had me see

the doctor, so I was — with stress and

anxiety, depression. You know, I was in

the penitentiary when I was in prison, so

I got to see a lot of people killed. As you

know, you probably already know it’s

very violent. You know, I seen a grown

man cry after being raped. It’s a lot of

things I experienced in there that, you

know, when I got out I wasn’t — I wasn’t

the same person, you know, mentally.

You know, just it was pretty tough, Your

Honor. So a lot of things I struggle with

mentally. So, I take medication now and

After hearing both aggravating and mitigating evidence, the district court

provided the following reasons for the fifty-seven-month sentence, 8:18-cr-179-VMC-

AEP, ECF No. 41 at 15–17:

[Court:] Well, the guideline range is forty-six to

fifty-seven. I look at this, Mr. Gonzalez,

and, you know, I’m supposed to consider

several things in addition to the guideline

range, and I always do or try to, to the

best of my ability, consider your record,

which is not good; the nature of this

offense, which is aggravated for the

reasons the United States pointed out;

consider your personal circumstances to

the extent that they may be relevant; and

then consider the objectives of sentencing,

which include enhancing respect for the

law, which is sort of flouted here,

protecting the community, which might

well be the principal concern here given

the fact that you committed a similar

felony while you were on supervision for

a predecessor felony and involving

firearms.

And that’s just, you hear those two words

together, certainly the well-being of the

community, protecting those innocent

persons near and around you has to be

a principal consideration. And avoiding

any unwarranted disparities, which

means, of course, seeing to it that you get

about the same sentence as a similarly

situated person who commits a similarly

— similar offense. Or, that is, that your

sentence is similar to the group of

similarly situated offenders. That’s

sometimes difficult to balance those

things, but in this circumstance, you don’t

leave me much choice, Mr. Gonzalez.

I can’t think of a reason that — given

these offenses that you shouldn’t be

sentenced, as the United States says, at the

upper end of the applicable guideline

range.

I think that the — the guidelines, I don’t

think — they’ve changed them so many

times I don’t remember exactly what they

now say on this topic, but at one time they

said that I could consider the fact that

someone had received a reduced sentence

in assessing a penalty for a violation.

I don’t even need to get to that issue

today, so — but a reasonable person

looking at this circumstance might

consider that.

So pursuant to the Sentencing Reform Act

of 1984, and to the extent that it’s

applicable after United States v. Booker, and

pursuant to 18 U.S.C. [Section] 3553,

I will enter an order committing you to

the custody of the Bureau of Prisons for

fifty-seven months.

“The court is not required to give all of the Section 3553(a) sentencing factors

equal weight.” United States v. Howard, 28 F.4th 180, 205 (11th Cir. 2022). “In its

sound discretion, the court may give ‘great weight to one factor over others,’ but only

if it is reasonable to do so.” 28 F.4th at 205 (citation omitted). “And though the

sentencing guidelines are only advisory, a major variance from the guidelines range

‘should be supported by a more significant justification than a minor one,’ and a

court must ‘consider the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.’” 28 F.4th at 205

(quoting Gall v. United States, 552 U.S. 38, 50 (2007)).

When weighing the sentencing factors, the district court placed great weight

on the need for the sentence imposed “to protect the public from further crimes of the

defendant.” 18 U.S.C. § 3553(a)(2)(C). Gonzalez had a lengthy criminal history,

had pleaded guilty to possession with intent to distribute fifty grams or more of

cocaine base, and had violated the terms of his supervised release for that drug

conviction by possessing more crack cocaine, possessing powder cocaine, and

arming himself with a loaded pistol. Given the aggravated nature of Gonzalez’s

violation and the lack of evidence proving his need for medical care, Gonzalez

cannot demonstrate a reasonable probability that his need for medical care would

have outweighed the need to protect the public to justify a downward variance.

Howard, 28 F.4th at 205. See also Wong v. Belmontes, 558 U.S. 15, 20 (2009).

Gonzalez’s motion under Section 2255 to vacate, set aside, or correct his

sentence is DENIED. The clerk is directed to enter a judgment against Gonzalez,

close this case, and enter a copy of this order in 8:05-cr-188-SDM-AEP.

DENIAL OF CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Gonzalez fails to show that reasonable jurists would debate either the

merits of the claims or the procedural issues, a certificate of appealability and leave

to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,

529 U.S. 473, 478 (2000). To appeal in forma pauperis, Gonzalez must obtain

permission from the court of appeals.

ORDERED in Tampa, Florida, on September 23, 2022.

Mis Wiwryelucy

STEVEND.MERRYDAY □□

UNITED STATES DISTRICT JUDGE

-15-