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United States v. Gonzalez

United States District Court, N.D. Florida, Panama City Division

May 8, 2019

UNITED STATES OF AMERICA
v.
DIANA GONZALEZ

          REPORT AND RECOMMENDATION

          HOPE T. CANNON UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On 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.[1] 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.

         Count 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. at 13-14.

         A nine-day jury trial began before the Honorable J. Richard Smoak, Jr., on September 9, 2013.[2] 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.

         Gonzalez's 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.

         The 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.[3] 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. Id.

         Gonzalez 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.

         II. LEGAL ANALYSIS

         A. Gonzalez's Motion is Untimely

         Motions 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.

         The 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.

         B. Gonzalez's Motion ...


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