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Gastelo v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 30, 2017



          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court on consideration of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, which is filed pursuant to 28 U.S.C. § 2255. (Doc. No. 1). For the reasons that follow, Petitioner's § 2255 Motion to Vacate will be dismissed.

         I. BACKGROUND

         On September 18, 2013, Petitioner was indicted in this district on one count of conspiracy to possess with intent to distribute at least one kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (Count One); one count of money laundering, in violation of 18 U.S.C. § 1956(h) (Count Two); and one count of possession with intent to distribute one kilogram of heroin, and aiding and abetting the same, all in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Four).

         Petitioner entered into a plea agreement with the Government, agreeing to plead guilty to Count One in exchange for the dismissal of Counts Two and Four.[1] In the agreement, Petitioner acknowledged the amount of heroin that was known or reasonably foreseeable to him in the conspiracy was at least one kilogram, and the parties agreed that they could argue about additional drug amounts during sentencing. (Doc. No. 121).

         On May 21, 2014, Petitioner appeared with counsel before U.S. Magistrate Judge David S. Cayer for his Rule 11 hearing and he was placed under oath. The elements of Count One were explained to him, along with the maximum penalties, and he averred that he understood the charge and he admitted that he was in fact guilty of the charged conduct. Petitioner also averred that he understood and agreed with the contents of his plea agreement, which included his decision to waive his right to contest his conviction or sentence on direct appeal or in a collateral proceeding, except through claims of prosecutorial misconduct and ineffective assistance of counsel. Petitioner swore that he had discussed how the Guidelines might apply to his sentence with his attorney, that he was satisfied with the services of his attorney, and that no one had promised him anything or coerced him regarding his decision to enter into the plea agreement and plead guilty. After answering these questions, Petitioner and his counsel examined the Acceptance and Entry of Guilty Plea form wherein the court had written down each of his responses to the questions posed during the hearing, and Petitioner signed the form acknowledging under oath that his answers were true. Petitioner's guilty plea was accepted after the court found that it was knowing and voluntary and his case was referred to the U.S. Probation Office for preparation of the presentence report.

         In the presentence report, the probation officer calculated a base offense level of 34 because the evidence demonstrated that Petitioner was responsible for at least 10 kilograms but less than 30 kilograms of heroin in the conspiracy. See USSG § 2D1.1(c)(3) (2014). A two-level enhancement was applied because Petitioner maintained a premises for manufacturing or distributing a controlled substance, see id. § 2D1.1(b)(12); a two-level enhancement was applied because the probation officer found that Petitioner was directly involved in the importation of a controlled substance from another country pursuant to USSG § 2D1.1(b)(15)(C); and four levels were added because the probation officer found Petitioner qualified as an organizer or leader in the drug conspiracy. Id § 3B1.1(a). After adjusting for acceptance of responsibility, Petitioner's Guideline range of imprisonment was 292-365 months based on a total offense level of 39 and a criminal history category II. After examining the draft of the presentence report, Petitioner filed objections to the proposed drug amounts and the enhancements for maintaining a drug premises and being an organizer or leader in the conspiracy. Petitioner also challenged the calculation of his criminal history.[2]

         On March 2, 2015, Petitioner appeared for his sentencing hearing and the Court confirmed that his guilty plea was knowing and voluntary after addressing Petitioner and reviewing the Rule 11 proceedings. The parties stipulated there was a factual basis for the plea in the presentence report and the plea was accepted. The Government then presented evidence regarding the amount of heroin it contended Petitioner was responsible for through the testimony of Special Agent Dustin Harmon from the DEA who served as a lead investigator in Petitioner's case. The Government also presented testimony from co-conspirators Steven Gonzalez, Lorenzo Gonzalez, and Carlos Moreno that described their role in the drug conspiracy and each witness testified regarding the amount of heroin involved and they admitted they took directions from Petitioner.

         After considering the Government's evidence, the Court sustained the objection to the four-level enhancement after finding that Petitioner's role appeared to be that of a manager/supervisor rather than a leader or organizer. Accordingly, a three-level enhancement was applied. Petitioner's objection to the enhancement for aiding and abetting the importation of heroin from Mexico was overruled. Finally, the Court overruled Petitioner's objection to the amount of heroin attributable to Petitioner after finding the Government's evidence credible that Petitioner was responsible for more than 10 kilograms. Petitioner's new Guidelines range was reduced to 262-327 months in prison based a Level II criminal history category and total offense level of 38. The Court granted Petitioner's motion for a downward departure and imposed a sentence of 240-months' imprisonment and his judgment was affirmed on appeal in an unpublished opinion. See United States v. Gastelo, 633 F. App'x 164 (4th Cir. 2016).

         In this collateral proceeding, Petitioner raises four claims of ineffective assistance of counsel (Grounds One, Two, Three, and Five) and a claim that his Fifth Amendment rights were violated (Ground Four).


         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings” in order to determine whether a petitioner is entitled to any relief. After having considered the record in this matter, the Court finds that no response is necessary from the United States. Further, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         A. Ineffective ...

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