United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
T. CANNON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Diana Gonzalez's
“Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody” (ECF Doc. 515), the Government's response
(ECF Doc. 527) and Gonzalez's reply (ECF Doc. 530).
Defendant's motion raises a single ground for relief: a
sentence reduction based on Amendment 794 of the Sentencing
Guidelines. The case was referred to the undersigned for the
issuance of all preliminary orders and any recommendations to
the district court regarding dispositive matters.
See N.D. Fla. Loc. R. 72.2; see also 28
U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). Based on a
review of the record and the arguments presented, the
undersigned recommends that the § 2255 motion be DENIED
without an evidentiary hearing. See Rules 8(a) and
(b), Rules Governing Section 2255 Cases. The undersigned
finds that the motion is time-barred and, even if it was not,
it fails on the merits.
BACKGROUND AND PROCEDURAL HISTORY
April 19, 2012, a federal grand jury returned a 54-count
indictment against Gonzalez and six (6) co-defendants, Evelyn
Johnston, Blaine Johnston, Hector A. Cabrera, Angel Done,
Wilson Calle and Wilfredo Rodriguez. ECF Doc. 1. The charges
were based on an extensive conspiracy to defraud the Internal
Revenue Service through the filing of fraudulent tax returns
claiming refunds totaling over $19, 000,
000.00. Id. Gonzalez, along with
co-defendants Cabrera, Calle and Done, was charged with
recruiting individuals who were interested in participating
in the scheme. Id. at 3. Co-defendants Evelyn and
Blaine Johnston, who owned and operated ABACO Executive
Services (ABACO), a tax-preparation entity, were charged with
filing or preparing all the fraudulent tax returns included
in this conspiracy. Id. at 9-10. Co-defendant
Rodriguez was charged with filing his own fraudulent tax
return, which was prepared by ABACO using the same scheme.
Id. at 14.
One charged the seven defendants with a conspiracy to defraud
the Government with respect to claims between October 1,
2008, and October 27, 2009, in violation of 18 U.S.C.
§§ 286 and 287. ECF Doc. 1 at 1-9. Counts 2 through
28 charged Evelyn Johnston and Blaine Johnston with filing
false claims in violation of 18 U.S.C. §§ 287 and
2. Id. at 9-11. Counts 29 through 43 charged Hector
A. Cabrera and Diana M. Gonzalez with filing false claims in
violation of 18 U.S.C. §§ 287 and 2. Id.
at 11-12. Counts 44 through 53 charged Angel Done and Wilson
Calle with filing false claims in violation of 18 U.S.C.
§§ 287 and 2. Id. at 12-13. Count 54
charged Wilfredo Rodriguez of filing a false claim in
violation of 18 U.S.C. §§ 287 and 2. Id.
nine-day jury trial began before the Honorable J. Richard
Smoak, Jr., on September 9, 2013. On the fourth day of trial,
Gonzalez pled guilty to the charge of conspiracy (Count One
of the Indictment). ECF Doc. 434. At the conclusion of the
trial, the other defendants were convicted as charged, with
the exception of Rodriguez, who was acquitted on Count One.
ECF Doc. 453. In December 2013, the Government dismissed
Counts 29-43 against Gonzalez. ECF Doc. 352.
plea proceedings took place on September 12, 2013. ECF Doc.
273. A preliminary presentence investigation report
(“PSR”) was prepared (ECF Doc. 314) and both
Gonzalez and the Government filed responses (ECF Docs. 317,
328), before a final PSR was issued. The 2013 version of the
Sentencing Guidelines manual was used to prepare
Gonzalez's PSR. ECF Doc. 332. Gonzalez's base offense
level was 6. Id. at ¶ 36. A 20-level adjustment
was added pursuant to U.S.S.G. § 2B1.1(b)(1)(K) because
the intended loss in the case was calculated to be $19, 027,
049.00. Id. at ¶ 37. Gonzalez also received
two, two-level adjustments because the offense conduct
involved “sophisticated means” and because it
involved “the possession or use of an authentication
feature.” Id. at ¶s 40, 41. After a
two-level acceptance of responsibility adjustment,
Gonzalez's total offense level was 28. With a criminal
history category of I (id. at ¶ 52) the
applicable guidelines range was 78 to 97 months. Id.
at ¶ 74.
Court sustained Gonzalez's objection to the adjustment
for the possession or use of an authentication feature, but
rejected her objection to an adjustment for an offense
conduct involving a “sophisticated means.” ECF
Doc. 361 at 1. With the Court's adjustment,
Gonzalez's total offense level was 26. ECF Doc. 361 at 1.
With a criminal history category of I, the applicable
guidelines range was 63 to 78 months. Id. On
December 26, 2013, the Court sentenced Gonzalez to 63
months' imprisonment, the low end of the applicable
guidelines range, followed by three years of supervised
release. ECF Docs. 360, 361. She was also ordered
to pay $245, 747.32 in restitution jointly and severally with
her co-defendants. Id. After the adjustment
mentioned above, the Court found the PSR to be accurate and
incorporated the findings into the sentence imposed.
filed a notice of appeal, but subsequently filed a motion to
dismiss the appeal with prejudice. ECF Docs. 374, 443. The
Eleventh Circuit granted her motion and dismissed the appeal
on February 20, 2014. Gonzalez filed nothing further until
filing the instant § 2255 motion in July 2016. ECF Doc.
515. The sole basis of her motion is that she is entitled to
relief under Amendment 794 to the Sentencing Guidelines and
“the newly amended 3B1.2 retroactive reduction under
the ‘Minor Role Clause.'” ECF No. 515 at 4.
Gonzalez's Motion is Untimely
under 28 U.S.C. § 2255(f) must be filed within one year
of certain triggering events, namely, the latest of: (1) the
date on which the judgment of conviction becomes final; (2)
the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or
laws of the United States is removed, if the petitioner was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the date on
which the facts supporting the claim or claims presented
could have been discovered through the exercise of due
diligence. 28 U.S.C. § 2255(f). Here, Gonzalez filed the
instant motion on July 29, 2016, more than a year after her
Judgment became final. ECF Docs. 515, 443; Close v.
United States, 336 F.3d 1283, 1284-85 (11th Cir. 2003).
Nonetheless, Gonzalez argues her motion is timely under
§ 2255 because it was filed within one year of a
“new (sic) discovered Rule, ” i.e., Amendment 794
to the U.S. Sentencing Guidelines. ECF Doc. 515 at 10.
undersigned disagrees and finds that Gonzalez's motion is
time-barred. The Sentencing Guidelines provide for a
two-level decrease to a base offense level if a defendant was
a minor participant in the criminal activity, and a
four-level decrease if the defendant was a minimal
participant. See U.S.S.G. § 3B1.2(a) and (b).
Amendment 794, effective November 2015, amended the
Commentary to § 3B1.2 by introducing a list of
non-exhaustive factors that a sentencing court should consult
when determining whether to apply a mitigating role
adjustment. See U.S.S.G. Supp. App. C., Amend. 794.
Amendment 794 did not make any substantive changes to
U.S.S.G. § 3B1.2, but rather merely “clarified the
factors to consider for a minor role adjustment.”
United States v. Cruickshank, 837 F.3d 1182, 1194
(11th Cir. 2016). Amendment 794 is clearly not a new right
recognized by a decision of the United States Supreme Court
and made retroactive on collateral review. Bell v. United
States, No. 2:14CV1104-MHT, 2017 WL 1398665, at *4 (M.D.
Ala. Mar. 16, 2017), report and recommendation
adopted, No. 2:14CV1104-MHT, 2017 WL 1398649 (M.D. Ala.
Apr. 18, 2017) (“§ 2255(f)(3) does not apply to
Bell's claim, because the claim is predicated on an
amendment to the Sentencing Guidelines and not on a right
recognized in (and made retroactive by) a decision of the
United States Supreme Court”). Therefore,
Gonzalez's motion is not timely.
Gonzalez's Motion ...