Petition for Writ of Certiorari — Roman Gabriel Gonzales, Petitioner v. United States

No. 20-

IN THE

Supreme Court of the United States

ROMAN GABRIEL GONZALES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES SCOTT SULLIVAN

LAW OFFICES OF J. SCOTT SULLIVAN

22211 I.H. 10 WEST, SUITE 1206

SAN ANTONIO, TEXAS 78257

(210) 722-2807

QUESTION PRESENTED FOR REVIEW

Whether the decision of the United States Court of Appeals for the Fifth Circuit

(“Fifth Circuit”)–which affirmed the significant increase of the base offense level by the

District Court in a fashion which violated the plea bargain--conflicts with the decisions of

this Court on an important matter, and therefore the decision by the Fifth Circuit calls for

an exercise of this Court’s supervisory powers such that a compelling reason is presented

in support of discretionary review by this Honorable Court.

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PARTIES TO THE PROCEEDING

The parties to the proceeding are listed in the caption:

Roman Gabriel Gonzales:

Petitioner (Defendant-Appellant in the lower

Courts)

United States of America:

Respondent (Plaintiff-Appellee in the lower

Courts)

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.........................................................................................i

PARTIES TO THE PROCEEDING.....................................................................................................ii

TABLE OF CONTENTS.....................................................................................................................iii

TABLE OF AUTHORITIES.............................................................................................................iv-v

CITATIONS TO OPINIONS AND RELEVANT ORDERS..................................................................1

GROUNDS FOR JURISDICTION.....................................................................................................1-2

CONSTITUTIONAL PROVISIONS......................................................................................................2

STATEMENT OF THE CASE........................................................................................................2-14

ARGUMENT AMPLIFYING REASONS RELIED ON

FOR ALLOWANCE OF THE WRIT.................................................................................15-22

CONCLUSION................................................................................................................................22-24

INDEX TO APPENDIX

APPENDIX A

Decision of the United States Court of Appeals for the Fifth

Circuit denying relief on direct appeal.

APPENDIX B

Judgment in a Criminal Case issued the United States District

Court for the Western District of Texas, San Antonio Division.

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TABLE OF AUTHORITIES

Cases:

Holguin v. United States, 140 S. Ct. 762, 766 (2020)...................................................................16

Puckett v. United States, 556 U.S. 129, 133-35 (2009).........................................................15, 18

United States v. Ataya, 864 F.2d 1324, 1329 (7th Cir. 1988)......................................................19

United States v. Baird, 218 F.2d 221, 229 (3d Cir. 2000)............................................................19

United States v. Bradbury, 189 F.3d 200, 206 (2d Cir. 1999).....................................................19

United States v. Chauful, 781 F.3d 758, 761 (5th Cir. 2015).......................................................15

United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008).......................................................18

United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011)........................................................18

United States v. Kirkland, 851 F.3d 499, 502-03 (5th Cir. 2017)...............................................15

United States v. Lopez, 605 F. Supp. 2d 852, 856 (S.D. Tex. 2009)............................................19

United States v. Martin, 25 F.3d 211, 216 (4th Cir. 1994)..........................................................19

United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996)..............................................................18

United States v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).......................................................18

Constitutional Provisions:

U.S. CONST. amend V...........................................................................................................................2

U.S. CONST. amend VI..........................................................................................................................2

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Statutes:

18 U.S.C. § 3553(a)...............................................................................................................13, 14, 20

21 U.S.C. § 841(a)(1)............................................................................................................................5

28 U.S.C. § 1254....................................................................................................................................1

Rules:

FED. R. CRIM. P. 32(i)(1)(A)...............................................................................................................23

FED. R. CRIM. P. 51(b).........................................................................................................................16

Sentencing Guidelines:

U.S.S.G. § 2D1.1....................................................................................................................................5

USSG § 2D1.1(c)(1)..............................................................................................................................5

U.S.S.G. Ch. 1, part A, § 4(c).............................................................................................................23

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PETITION FOR WRIT OF CERTIORARI

Petitioner, ROMAN GABRIEL GONZALES, requests that this Honorable Court grant this

petition and issue a Writ of Certiorari to review the decision of the United States Court of

Appeals for the Fifth Circuit.

Mr. Gonzales respectfully submits the District Court

committed reversible error by failing to sustain Mr. Gonzales’s objection that the

Government was violating the plea bargain. The Fifth Circuit did not apply the correct

standard of review as defined by this Court and reversibly erred by holding the plea bargain

was not violated. Accordingly, the decision by the Fifth Circuit is in conflict with decisions

of this Court and a compelling reason is presented in support of discretionary review.

CITATIONS TO THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS ENTERED IN THE CASE

From the Federal Courts:

The Order of the United States Court of Appeals for the Fifth Circuit, United States

v. Roman Gabriel Gonzales, No. 19-50820 (5th Cir. August 31, 2020), appears at

Appendix A to this Petition and is unreported.

The Judgment in a Criminal Case of the United States District Court for the Western

District of Texas, San Antonio Division, appears at Appendix B to this petition and

is unreported.

From the State Courts:

None.

GROUNDS FOR JURISDICTION

This Petition arises from a direct appeal which granted final and full judgment

against Mr. Gonzales. This action is on a criminal prosecution initiated by the Government.

Mr. Gonzales pleaded guilty to possession with intent to distribute methamphetamine and

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interference with commerce by threat. The District Court overruled Mr. Gonzales’s

objection to a violation of the plea bargain. A copy of the judgment appears at Appendix B.

On appeal, the Fifth Circuit affirmed. A copy of the appellate decision appears at Appendix

A. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS

U.S. CONST. Amend. V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property be taken

for public use, without just compensation.

U.S. CONST. Amend. VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation: to be confronted with witnesses against him; to have compulsory

process for obtaining witnesses in this favor; and to have Assistance of

Counsel for his defense.

STATEMENT OF THE CASE

Overview

This case involves the Texas Mexican Mafia. Relevant to this petition, Roman

Gabriel Gonzales pleaded guilty to one count of interference with commerce by threat or

violence and a second count of conspiracy to distribute a controlled substance. ROA.422-49.

More specifically, on the second count, the District court told Mr. Gonzales he was “pleading

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guilty to conspiracy to distribute . . . 50 grams or more of meth and a hundred grams of

heroin.” ROA.441.

The Indictment Describes the Conspiracy

The basis of the conspiracy was “to exert money from drug traffickers so that the

money could be distributed to members of the Texas Mexican Mafia.” ROA.26. Individuals

who sold drugs had to pay a ten percent tax to the organization, which was referred to as

“paying the dime.” ROA.26. These collection efforts were allegedly done by lower ranking

individuals called “carnales,” who would turn over those funds to the chain of command.

ROA.27.

With regard to manner and means, part of the conspiracy involved extorting money

from drug dealers who would otherwise face violence from the Mexican Mafia. ROA.28.

Numerous overt acts were done in furtherance of the conspiracy. According to the

indictment, the overt acts that involved Mr. Gonzales were:

*

he put a “chick” [woman] on the books for “selling the green” [marijuana];

*

he collected $100 every two weeks from a certain drug dealer;

*

he sent the names and addresses of certain drug dealers to other members of

the conspiracy;

*

he instructed that certain drug dealers be “put on the books”; and

*

he stated to another member of the conspiracy that “[t]he ole boy over at the

Dairy Queen” was inadvertently put on the books.

ROA.28-42.

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The Plea Agreement

On April 30, 2018, a plea agreement between the Government and Mr. Gonzales was

filed with the District Court. ROA.486-95. The agreement provided that Mr. Gonzales would

plead guilty to both count one and count two of the superceding indictment. ROA.486-95.

The Factual Basis for the plea agreement is eight pages in length, ROA.488-95, and thus is

discussed where relevant in the “Argument Amplifying Reasons Relied on for Allowance of

the Writ” portion of this brief. The plea agreement also includes a waiver of appellate

rights, ROA.496-97, which will likewise be discussed in the Argument section of this petition.

The District Court subsequently accepted Mr. Gonzales’s plea of guilty. ROA.422-49.

The PSR

The PSR was filed by a United States Probation Officer in its final, revised form on

August 14, 2019. ROA.530-54. The PSR set forth the above-information from the indictment

as to how the Texas Mexican Mafia operated in San Antonio, Texas. ROA.533-36. The PSR

also concluded that “the TMM [referring to the Texas Mexican Mafia] extorted

approximately $862,000 from drug dealers.” ROA.536.

The PSR next outlined Mr. Gonzales’s alleged relevant conduct. ROA.536-40. The

Probation Officer summarized that Mr. Gonzales “was responsible for receiving weekly calls

from Southside TMM carnales who are required to ‘report in’ on a weekly basis.” ROA.537.

The PSR further notes that Mr. Gonzales “assisted in the collection of monthly payments due

from TMM members by the 15th of each month to be turned in to the Mesa for further use

by the TMM.” ROA.537. The remainder of this portion of the PSR was devoted to the

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recitation of intercepted phone calls and text messages that establish how Mr. Gonzales

reported in and assisted with the activities described above. ROA.537-40. Where relevant

to this appeal, these calls and text messages are discussed in the Arguments portion of this

brief.

The PSR also determined the roles of all of the known participants in this conspiracy.

ROA.541. Mr. Gonzales was deemed an average participant. ROA.541.

PSR Calculations

On the charge of interfering with commerce by threats or violence, the PSR assigned

a base offense level of 18. ROA.542. The PSR added 2 levels because the offense involved

threats of death, bodily injury or kidnaping. ROA.542. Three levels were added because the

total mount of money extorted by the conspiracy was $862,000. ROA.542. Six levels were

then added because firearms were used in the collection of the money. ROA.542. This

brought the adjusted offense level on this count to 29. ROA.542.

On the charge of conspiring to distribute 50 grams or more of methamphetamine and

100 grams of heroin, the PSR provides:

Base Offense Level: The guideline for a violation of 21 U.S.C. §

841(a)(1) is USSG § 2D1.1. During the time frame of the drug-trafficking

conspiracy (January 2015 to May 2017), the defendants were responsible for

the distribution of multi-kilogram quantities of crystal methamphetamine,

heroin and cocaine. As such, they are accountable for an amount which

exceeds 4.5 kilograms of methamphetamine actual and/or 90 kilograms of

heroin. The base offense level is 38. USSG § 2D1.1(c)(1).

ROA.542-43 (emphasis in original).

Two levels were then added because firearms were used in the distribution of the

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narcotics. ROA.543. Two more levels were added due to the fact that the conspiracy used

violence during a home invasion. ROA.543. Finally, 2 additional levels were added in light

of the fact that some of the distribution activity by the conspirators took place in a prison

or a detention facility. ROA.543. Thus, the adjusted offense level on this count was set at

44. ROA.543.

PSR Calculations: Multiple Count Adjustment

Under the multiple count adjustment rule, Mr. Gonzales’s combined adjusted offense

level was calculated to be 44. ROA.543. Three levels were then deducted for acceptance of

responsibility. ROA.544. Thus, the PSR reflects that Mr. Gonzales’s total offense level was

44. ROA.544.

PSR: Criminal History

The Probation Officer then calculated criminal history. ROA.544-46. Mr. Gonzales

was assigned 3 criminal history points for a 1993 burglary of a habitation conviction.

ROA.545. Three (3) points were added for a 2001 possession with intent to deliver a

controlled substance conviction. ROA.546. Finally, 1 point was added because Mr. Gonzales

“threw two women off another woman.” ROA.546. This other woman was Mr. Gonzales’s

girlfriend. ROA.546.

This brought Mr. Gonzales’ subtotal criminal history to 7. ROA.546. Two (2) criminal

history points were added because Mr. Gonzales committed the instant offense while under

a criminal justice sentence. ROA.546. Thus, Mr. Gonzales’ criminal history score was 9 and

his corresponding criminal history category was IV. ROA.546.

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PSR: Final Sentencing Options

The Probation Officer concluded an offense level of 41 and a criminal history category

of IV established a punishment range of 360 months to life in the custody of the Bureau of

Prisons. ROA.550. However, the because the maximum range on the second count was 40

years, the top of the Guidelines range was set at 480 months in prison. ROA.550.

Objections to the PSR

Mr. Gonzales filed objections to the PSR. ROA.730-42. He objected to the proposed

base offense level and other matters. ROA.730-42. The base offense level objection is

relevant to this petition.

The Sentencing Hearing- Addressing the Objections

The District Court began the sentencing hearing by addressing Mr. Gonzales’

objections to the PSR. ROA.452. The Court acknowledged the specificity of the objections

by clarifying:

THE COURT: Okay. So the first objection I note here is–and I’m not sure what

order you want to take it on–some apply to Count 2, some apply to Count 1,

and some apply to both. And so on Count 1, on the firearm objection, I wasn’t

sure whether you were objecting to that being applied on Count 1, count 2, or

both.

MR. SULLIVAN: And the reason I put that at the end is I started with the

count that’s probably more controlling in this case, which in my

understanding is the count that I think landed him at 30 plus some odd,

because the other count landed him at about 29. So a lot of that I thought

would depend on what the Court does on the second count. So, yes, I think the

only one that crosses over is probably the gun.

THE COURT: The gun, and I think the minimum role applies, if you’re going

to raise it on both.

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MR. SULLIVAN: Yes.

THE COURT: Well, let’s start this way then.

ROA.452-53.

The Court began with the base offense level. ROA.453. The Court correctly described

that Mr. Gonzales’ argument was that the level 38 was improperly calculated and the base

offense level should be scored at 30. ROA.453.

The Government’s Argument for the Base Offense Level

The Court requested a response, to which the Government said this is “the same

group of people that was dealt with yesterday” at the hearing with “folks on the Southside.”

ROA.453-54. Mr. Gonzales and his attorney were not invited to “yesterday’s” hearing and

were never provided a transcript. The Government declared it had witnesses “as we have

in the past” [date unknown to Mr. Gonzales] that the defendant was working for other

members of the group. ROA.454. The Government claimed that it had “witnesses who would

testify they delivered multi-ounce quantities of both cocaine and methamphetamine to this

defendant on multiple occasions . . . every week and a half . . . for a minimum of six months.”

ROA.454.

At this point, the Government went on to claim:

A witness would testify that he also was aware that he had delivered

as much as four and a half ounces of meth to him personally; that Mr.

Gonzales was aware of the amounts of narcotics that Mr. Garza and Mr.

Garansuay were moving. He testified previously that Mr. Garansuay was

receiving over five keys of methamphetamine every week and that this

defendant, among others, was aware of that.

ROA.454.

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The Government then addressed wiretaps. ROA.455. The Government claimed “Mr.

Gonzales was extremely involved in coordinating activities with members of the south

sides.” ROA.455. The Government also claimed the wiretaps show the carnales and

prospects were reporting to the Mexican Mafia. ROA.455. The Government further stated

that wiretaps would show that Mr. Gonzales knew of the multiple kilos of heroin:

There was testimony at trial that the amount of heroin during the course of

this conspiracy was approximately 775 kilos of heroin that was distributed by

the canton [referring to a division of the cartel] during that period of time.

ROA.455. Again, no transcript of that trial was provided to Mr. Gonzales.

The Government also claimed the money involved in this case was the equivalent of

$8.9 million worth of drugs. ROA.456. Thus, the Government concluded:

So there is three different ways you can look at it, including his direct,

personal involvement. The agent is here and is familiar with that testimony

and I could call coconspirators to that effect, but that’s also what’s

demonstrated by the discovery that was produced in this case.

ROA.456.

At this juncture, the Judge said to counsel for Mr. Gonzales: “You heard the proffer.”

ROA.456. The Judge then stated: “We can put on witnesses if your client is still going to

object, or are you going to concede this point?” ROA.456-57. Counsel respectfully declined

to concede this point. ROA.457.

Mr. Gonzales’s Position at Sentencing

In response, Mr. Gonzales took the position that the recorded phone conference do

not establish the Government’s proffer and, in fact, establish that the only drug Mr. Gonzales

possessed was cocaine on two occasions. ROA.457. Then, and crucial to this appeal,

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counsel stated:

My understanding is under our plea bargain they may allege facts to clarify

facts. They cannot come in and bring up other allegations I haven’t heard on

the record to develop their theory.

I submit to the Court that is a violation of the plea bargain and we would ask

the Court to set those things aside, rely on the PSR, and make a finding that

he’s under 150 grams of meth because that is what’s on these calls.

ROA.457. Counsel further added:

Through all those phone conferences, all those checks, they can’t prove what

they are saying they can prove, your Honor. And to the extent they are trying

to do that, that’s a violation of a plea bargain. Those aren’t facts. Those PSR

facts are not in there, your Honor.

ROA.458. Therefore, counsel concluded that the amount for relevant conduct purposes is

146 grams, as the PSR establishes, and the resulting base offense level is 30. ROA.458.

The Court nonetheless allowed the Government to proceed with testimony. Despite

the Government’s declaration that it would call multiple witnesses, only one witness was

called. ROA.458. That witness was FBI Agent Katherine Gutierrez. ROA.458-59.

Agent Gutierrez testified that, from January of 2015 to May of 2017, Mr. Rodriguez

interacted with ranging members of the Mexican Mafia, to wit: Jesus Rodriguez, Alfred

Garansuay, and Julian Garza. ROA.460. She claimed she had spoken to “persons” who

indicated Mr. Gonzales was aware of the extent of the movement of drugs in San Antonio.

ROA.461. She stated that “overall during the conspiracy it would total to approximately 700

plus kilograms of heroin.” ROA.462. Agent Gutierrez noted that Mr. Rodriguez actually

collected monthly fees, known as “dime payments,” that members had to “send in.”

ROA.463.

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Agent Gutierrez determined that “during the conspiracy range” approximately

$862,000 was collected by the Mexican Mafia. ROA.464. This led Agent Gutierrez to

conclude that the group had moved $8.6 million worth of “dope.” ROA.465. Agent Gutierrez

further opined that this was 2,413 kilos of cocaine. ROA.465. She described such quantities

of dope as foreseeable by a member of the Mexican Mafia. ROA.465.

The Agent then discussed the amount of drugs “moved” by Mr. Gonzales. ROA.466.

She stated that Mr. Gonzales moved 1 ounce a week. ROA.466. Agent Gutierrez said that

Mr. Gonzales moved this 1 ounce per week for six months, which was 26 weeks. ROA.466.

The Government then turned its attention to other individuals with whom Mr.

Gonzales was allegedly working, which included Pedro Torres, Mr. Garza and Alfred

Garansuay. ROA.467-68. All three of these individuals were fellow carnales on the

Southside of San Antonio, Texas. ROA.468. Mr. Garansuay was receiving 5 kilograms each

of heroin, cocaine and methamphetamine, on approximately a weekly basis. ROA.468.

The Government next focused on a March 10, 2017, telephone conversation which was

seized by a wiretap. ROA.470. Agent Gutierrez described this as a phone call where Mr.

Gonzales was talking to a lieutenant and she testified “he was identifying some locations

that were believed to be selling narcotics that were not paying the dime so that a squad

could go out there and enforce the dime payment.” ROA.470. The agent then claimed there

was another similar conversation, but did not provide information to determine the date of

the telephone conference. ROA.470.

On cross-examination, the Agent conceded that Mr. Gonzales was purchasing an

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ounce of methamphetamine a week for 6 months. ROA.471-72. She further conceded that

the Government did not intercept a telephone call on Mr. Gonzales until October of 2016.

ROA.472. Agent Gutierrez also agreed that the 1 ounce a week for 6 months would amount

to 728 grams of methamphetamine. ROA.473.

With respect to the phone intercepts, on October 11, 2016, Mr. Gonzales received 2

ounces of methamphetamine. ROA.474. Then, when the Government ran a warrant at Mr.

Gonzales’ home, Agent Gutierrez agreed that law enforcement officers found 90 grams of

methamphetamine. ROA.474. It was concluded that this added to less than 150 grams of

methamphetamine. ROA.474-75. The Agent stated that she did not know if there were other

amounts mentioned in the phone calls. ROA.476.

Agent Gutierrez then agreed this conspiracy started in 2015. ROA.476. It became

clear from her testimony that Mr. Gonzales’s name was not mentioned on the tapes until the

last third of the conspiracy. ROA.476. Moreover, even after his name was brought to light

on the tapes, the Government did not tap his phone. ROA.476 (emphasis added).

At that point, the witness was excused. ROA.478. The Government did not call any

other witnesses, despite its proffer.

The Ruling of the District Court

Without further argument from the Government or counsel for Mr. Gonzales, the

Court proceeded to rule on the objections. ROA.478-79. Relevant to this petition, the Court

found:

With regard to paragraph 61, the objection is that the defendant has been

unfairly attributed with more drugs than he was involved in. The objection

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was to the scoring of 38. The Court finds, though, that the defendant was

aware and did participate in amounts which exceeded 4.5 kilograms of

methamphetamine and/or 90 kilograms of heroin. That objection is noted but

overruled.

ROA.479.

The Court then reached the following conclusions on the Guidelines:

So with all of that, Mr. Gonzales, you’re at a Criminal History category

IV and a total offense level of 41. The guidelines, if calculated, would score at

360 to life. However, on Count 1, the statutory maximum is 20 years; and on

count 2 the sentence is a minimum of five years pursuant to statute, and a

maximum of 40 years; and you are scoring at 360 to life on the guideline

range.

ROA.480.

At that point, counsel for Mr. Gonzales argued the 18 U.S.C. § 3553(a) factors.

ROA.481. Counsel stated that Mr. Gonzales was not violent; and noted that, as the phone

intercepts established, Mr. Gonzales carried money from place to place; and requested that

the Court consider a sentence of 144 months. ROA.481.

Mr. Gonzales addressed the Court and apologized to his family and left the matter in

the Court’s hands. ROA.482. He said that he would respect the Court’s decision. ROA.482.

The Government briefly responded. The prosecutor asserted: “I think in the scope

of the conspiracy and the relationship to other defendants, he probably should be sentenced

somewhere between 18 to 22 years.” ROA.482.

The following concluding exchange took place between the Court and the

Government:

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THE COURT: Thank you. So I’m trying to avoid, to the extent I can,

sentencing disparities, and so I’m trying to place Mr. Roman Gabriel Gonzales,

vis-a-vis, the others, especially–so I gave Fernando 240 months.

I’m assuming that the government agrees that Mr. Roman Gabriel Gonzales’s

culpability is slightly less than that; correct?

MR. LEACHMAN: I would agree with that, Judge.

THE COURT: Thank you.

ROA.482.

The Court then explained that the 18 U.S.C. § 3553(a) factors had been applied, the

PSR had been reviewed, and that the PSR was adopted. ROA.483. Based on the above

considerations, the Court sentenced Mr. Gonzales to 18 years on each count, to run

concurrently. ROA.483.

Notice of Appeal

The Judgement was filed on August 22, 2019. ROA.293-98. Notice of appeal was

timely filed on September 5, 2019. ROA.300-01. The appeal to the Fifth Circuit followed.

(Appendix A).

The Opinion of the Fifth Circuit

On appeal, Mr. Gonzales argued, among other things, that it was a violation of the

plea bargain to significantly increase the amount of methamphetamine for which he was

held accountable to increase the base offense level. The Fifth Circuit disagreed and

affirmed the sentence. (Appendix A). Mr. Gonzales now respectfully files this Petition for

Writ of Certiorari.

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ARGUMENT AMPLIFYING REASONS RELIED

ON FOR ALLOWANCE OF THE WRIT

I.

Standard of Review

A.

Before the Fifth Circuit

Mr. Gonzales argued to the Fifth Circuit that the determination of drug quantity to

be used for the base offense level was a violation of the plea bargain and was also reversible

error. (Opening Brief, pages 23-29). Mr. Gonzales claimed the standard of review for his

argument that the plea bargain was breached was de novo. (Opening Brief, pages 23-24).

The Government agreed and noted “[w]hether the Government has breached a plea

agreement is a question of law this Court reviews de novo.” (Government’s Brief, page 19)

(citing United States v. Chauful, 781 F.3d 758, 761 (5th Cir. 2015)).

However, the Fifth Circuit disagreed with Mr. Gonzales and the Government on the

initial issue of the standard of review for breach of the plea agreement issue. (Appendix A,

page 2). Specifically, the Fifth Circuit ruled:

In the district court, Gonzales contended that the Government had

breached his plea agreement by proffering evidence not otherwise mentioned

in the record and of which counsel was previously unaware; as he did not

raise his current breach argument in the district court, we review only for

plain error. See Puckett v. United States, 556 U.S. 129, 133-35 (2009); United

States v. Kirkland, 851 F.3d 499, 502-03 (5th Cir. 2017). Because Gonzales

does not even attempt to show plain error, his claim necessarily fails.

(Appendix A, page 2). Therefore, Mr. Gonzales must first address the issue of the standard

of review in this case.

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B.

The Error was Preserved

In Holguin v. United States, 140 S. Ct. 762, 766 (2020), this Court explained that,

“[b]y ‘informing the court’ of the ‘action’ he ‘wishes the court to take,’ Fed. Rule Crim. Proc.

51(b), a party ordinarily brings to the court’s attention to a contrary decision.” The rules

do not “require an objecting party to use any particular language or even to wait until the

court issues its ruling.” Id. Thus, “the question is simply whether the claimed error was

‘brought to the court’s attention.” Id. (citing FED. R. CRIM. P. 52(b)).

Mr. Gonzales submits this error was preserved for review. In response to the

objections, the Government argued that Mr. Gonzales should be held accountable for other

drug transactions because they were discussed when the prosecutor addressed the Court

on separate days on separate defendants. ROA.453. In making his objection, Mr. Gonzales

contended these separate discussions added facts which were not part of the factual basis

in this case and the evidence in those other cases was not part of the evidence in this case.

ROA.453. Mr. Gonzales argued that the Government was violating the plea bargain.

ROA.453. Specifically, as set forth below, he contended that the Government impermissibly

relied on evidence from hearings held when Mr. Gonzales was not present, as “we have done

in the past,” to show how Mr. Gonzales had delivered multi-ounces of cocaine and

methamphetamine for at least six months. ROA.454. He also noted that the Government

went so far as to rely on the testimony in a trial which was unknown to the defense.

ROA.455.

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Mr. Gonzales objected that this was a violation of the plea bargain because the

Goverment was using facts and allegations that were unknown and that none of these new

facts were in the discovery or PSR. ROA.457. Mr. Gonzales thus argued “the correct amount

of methamphetamine for relevant conduct is 146 grams.”

ROA.458.

Despite the

Government’s belief as to the amount of methamphetamine, the prosecution agreed the

Government had never tapped Mr. Gonzales’s phone to prove he had a more extensive

involvement in additional drug trafficking. ROA.146, 476. After the single witness testified,

and before any argument, the Court denied the objections. ROA.479.

On appeal, Mr. Gonzales argued the Government breached the plea agreement by

urging the Court to determine the Guidelines range based upon “unsubstantiated

calculations and evidence which was not allowed to be contested at sentencing, to establish

a grossly inflated amount of drugs as relevant conduct.” (Opening Brief, page 26). Because

the Government’s plea bargain declares the rules governing the Guidelines and its

commentary be followed, Mr. Gonzales asserted it was a breach of the plea bargain not to

follow the mandates of the Guidelines. (Opening Brief, pages 26-27). Thus, when the

Government used the unsubstantiated evidence above, it was Mr. Gonzales’s position that

the Government did not prove, and the District Court did not require the Government to

prove, sentencing facts which have an indicia of reliability by a preponderance of the

evidence. (Opening Brief, pages 26-29).

In sum, under the reasoning of this Court in Holguin-Hernandez, this argument that

the plea bargain was breached was preserved for review. Specifically, Mr. Gonzales argued

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to the District Court and the Fifth Circuit that, because the plea bargain included a promise

that the particulars of the Guidelines would apply, there was a breach of the agreement

when the standard of proof required under the Guidelines for determining relevant conduct

was not applied by the District Court at the Government’s request. Therefore, under this

Court’s reasoning, this issue was preserved for review.

Accordingly, Mr. Gonzales

respectfully submits that this Court should grant this petition to allow this case to proceed

for further proceedings.

II.

The Plea Bargain was Breached

“Plea bargains are essentially contracts.” Puckett, 566 U.S. at 137. “When a

defendant agrees to a plea bargain, the government takes on certain obligations.” Id. The

Government is obligated to uphold its side of the bargain and thus this its compliance with

the agreement must be enforced. Id.

“The government must strictly adhere to the terms and conditions of its promises in

the agreement . . . .” United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008). This

Circuit has stressed that “a plea agreement is construed strictly against the Government as

the drafter.” Id. Mr. Gonzales bears the burden of proving “the underlying facts that

establish breach by a preponderance of the evidence.” United States v. Roberts, 624 F.3d

241, 246 (5th Cir. 2010) (citing United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996)); see

also United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011) (“The defendant has the

burden of proving the underlying facts by a preponderance of the evidence.”).

Courts agree that plea agreements are “unique and are to be construed in light of due

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process concerns.” United States v. Lopez, 605 F. Supp. 2d 852, 856 (S.D. Tex. 2009)

(quoting United States v. Baird, 218 F.2d 221, 229 (3d Cir. 2000)). A plea agreement is “a

contract in which special due process concerns for fairness and the adequacy of procedural

safeguards obtain.” United States v. Ataya, 864 F.2d 1324, 1329 (7th Cir. 1988). As the

Fourth Circuit Court of Appeals has explained, “[p]lea agreements between the government

and a defendant are unique and call for special due process considerations.” United States

v. Martin, 25 F.3d 211, 216 (4th Cir. 1994). To this end, it is important to ask what was

reasonably understood by the defendant when entering into the agreement. United States

v. Bradbury, 189 F.3d 200, 206 (2d Cir. 1999).

Based on the case law, as well as the above-discussion on reasonable expectations,

Mr. Gonzales respectfully submits that the Government breached the plea agreement in this

case. More specifically, the Government’s actions at sentencing were not consistent with

the reasonable expectations established by the plea agreement. The agreement provided

that the Guidelines would be followed. The Guidelines, provide and are interpreted as

requiring, that only facts which are proven by a preponderance of the evidence with an

indicia of reliability will be included in the Guidelines calculations. Respectfully, the

Government proffered and the Court accepted untested comments by co-conspirators, mischaracterizations of the evidence, unsubstantiated calculations, and evidence which was not

allowed to be contested at sentencing, to establish a grossly inflated amount of drugs

attributed to Mr. Gonzales’s relevant conduct. In other words, the agreement provided facts

must be proven by a preponderance of the evidence. Here, the facts regarding extraneous

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drug transactions presented to the Court were not subjected to any such determination and

thus the plea bargain was violated.

Stated another way, the plea agreement prepared by the Government states that the

Court will consider the Guidelines, the accompanying policy statements, and 18 U.S.C. §

3553(a). ROA.488. However, as the Government addressed the Court at sentencing, the

Government set those rules aside, urged otherwise, and the Court followed.

The Government reminded the District Court that this is “the same group of people

that was dealt with yesterday” and of a “folks on the Southside” hearing to which Mr.

Gonzales was not a party. ROA.453-54. The Government declared that it had witnesses and

was prepared to put on testimony, “as we have in the past” that would ultimately lead to the

“infamous,” as described by the AUSA, Pedro Torres. ROA.454. The plea agreement clearly

does not establish that any, much less all, of these alleged facts which were known only to

the Government and the Court would be considered by the Court at sentencing.

Moreover, the Government only put on one witness, an FBI agent, to testify and this

witness proved none of these proffers by the Government. ROA.454-58. The prosecution

claimed witnesses would testify, and in fact no one did testify when testimony was

requested, that multi-ounce amounts of both cocaine and methamphetamine were possessed

on multiple occasions by Mr. Gonzales. ROA.454. Subsequently, the Agent disagreed and

stated that the amount of drugs Mr. Gonzales moved was 2 ounces a week for 6 months.

ROA.454, 460.

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The Government went on to state that there was a witness who would testify, but

never did, that Mr. Gonzales had delivered 4½ ounces of contraband to him and that

someone named “Garansuay” was receiving “5 keys” (kilos) of contraband a month.

ROA.454. Yet, the Government never established how 4½ ounces was relevant to more than

4.5 kilos and why 5 kilos of methamphetamine every week was relevant to Mr. Gonzales at

sentencing.

The Government then turned its attention to the wiretaps. ROA.455. The prosecutor

claimed the wiretaps show “extreme” coordination by Mr. Gonzales of the carnales.

ROA.455. However, the PSR shows this is an incorrect characterization of what was on the

wiretaps. ROA.537-40. More specifically, the PSR does not provide any information that Mr.

Gonzales coordinated any of the other members of the organization. ROA.537-40.

The AUSA then declared that witnesses would testify that Mr. Gonzales was aware

that the conspiracy involved multiple kilos of heroin. ROA.455. However, no witnesses

testified to this and the PSR does not reflect any such factual basis for the prosecutor’s

statement. ROA.537-40.

The Government then reached for evidence from a trial which allegedly established

that the conspiracy involved 775 kilos of heroin. ROA.455. The prosecutor did not introduce

a transcript from that trial and hence no one knows how any such evidence, if it in fact

exists, was connected to Mr. Gonzales.

The Government next claimed that Mr. Gonzales was involved in the entire

conspiracy. ROA.455. However, the prosecutor’s agent who testified agreed that Mr.

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Gonzales did not appear on a phone tape until the last third of the conspiracy. ROA.455.

Indeed, the Government conceded it never tapped his phone and no witness established he

was in the conspiracy for more than the last third of the conspiracy. ROA.455.

The prosecutor concluded with his belief that the discovery produced in this case

establishes all of his allegations on what witnesses would show. ROA.456. Again, this is

incorrect because the discovery did not show such extensive involvement with the Mexican

Mafia. ROA.562-65. Rather, the record is undisputed that Mr. Gonzales was involved with

only 146 grams of methamphetamine. ROA.562-65. In sum, the evidence does not support

the Government’s extravagant ideas of the discovery and the PSR facts.

After cross-examination of the Agent established the above lack of an indicia of

reliable support for the Government’s representation on the facts, the Government called

none of the promised witnesses. Respectfully, the Government’s proffer had no indicia of

reliability and was never submitted to meaningful review that, as established above, the

Guidelines and due process require. In this regard, the Government did not show the alleged

facts to support a 4.5 kilo of drugs conclusion was supported in any fashion with an indicia

of reliability. Indeed, there is no evidence the Court or the Government applied such a

standard.

CONCLUSION

As the above-discussion establishes, the District court was required to consider the

Guidelines and how Courts apply the facts to the Guidelines. Respectfully, the Court here

did not follow these well established rules for factual development and application of the

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Guidelines. The facts the Government urged on the court were never shown to have an

indicia of reliability. The facts which were used to direct the court to its sentence were facts

which were not substantiated by the evidence and were, in fact, misrepresentations of the

PSR and the purported evidence in this case. Mr. Gonzales never waived the rules which

apply in this case. Indeed, the Court failed to ask the defendant if he had read the PSR in

violation of Federal Rule of Criminal Procedure 32(i)(1)(A). This is further support that Mr.

Gonzales should be re-sentenced in compliance with a reasonable understanding of the

contours of the plea agreement and in accord with the contours of due process as it applies

to the evidence in this case.

The Guidelines Policy Statement on the Resolution of Major Issues addressed

whether the Guidelines would have a positive impact on plea agreements. U.S.S.G. Ch. 1,

part A, § 4(c). It was noted that when the parties are exploring a negotiated plea “they will

no longer work in the dark.” Id. It was determined that “this fact alone should help to

reduce irrationality in respect to actual sentencing outcomes.” Id. In order to accomplish

this goal, and for these and the reasons set forth above, this matter should proceed for

further consideration.

Therefore, Mr. Gonzales respectfully submits that the decision of the United States

Court of Appeals for the Fifth Circuit conflicts with the decisions of this Court on an

important matters of sentencing. Therefore the decision by the Fifth Circuit calls for an

exercise of this Court’s supervisory powers such that a compelling reason is presented in

support of discretionary review by this Honorable Court.

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WHEREFORE, Petitioner, ROMAN GABRIEL GONZALES, respectfully requests that this

Honorable Court grant this petition and issue a Writ of Certiorari.

Respectfully Submitted,

James Scott Sullivan

JAMES SCOTT SULLIVAN

LAW OFFICES OF J. SCOTT SULLIVAN

22211 I.H. 10 WEST, SUITE 1206

SAN ANTONIO, TEXAS 78257

(210) 722-2807

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