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Elvis Gomez v. United States of America

December 7, 2012

ELVIS GOMEZ, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION AND ORDER

On June 18, 2012, Elvis Gomez ("Gomez" or "defendant") filed a timely petition for a writ of habeas corpus asserting ineffective assistance of counsel in connection with his entry of a plea of guilty to a charge that he conspired to distribute heroin. Gomez was sentenced on February 4, 2011, principally to a term of imprisonment of 216 months. His conviction was affirmed on appeal on June 5, 2012, after appellate counsel filed an Anders brief. For the following reasons, the petition is denied without a hearing.

In his petition, the defendant complains that his attorney misled him in connection with his execution of a plea agreement ("Agreement") with the Government. According to the defendant, his attorney promised him that his maximum sentence would be ten years if he signed the Agreement. The attorney never told the defendant that he would be facing a guidelines range of 262 to 327 months' imprisonment; indeed, his attorney never explained how the guidelines applied to the defendant, or that there would be adjustments to the guidelines' calculations based on his leadership role or use of a firearm.

The petition does not explain precisely what relief the defendant seeks. It is assumed for purposes of this Opinion that the defendant seeks to vacate his conviction, to withdraw his plea of guilty, and to proceed to trial. Because the record created through the Agreement, the proceeding at which the defendant entered his plea of guilty, and at his sentencing flatly contradict the defendant's petition, this petition may be denied without the need for an evidentiary hearing.

BACKGROUND

According to the Government, the defendant and his brothers supervised a massive heroin conspiracy in the Bronx that operated multiple heroin mills over the course of many years and packaged over a thousand kilograms for distribution. The defendant assisted the enterprise by supervising several of the mills, and during the period 2002 to 2003 he delivered drugs to mills and helped to process the heroin. In 2003, the defendant returned to the Dominican Republic.

The defendant was indicted in 2008 on two counts: (1) conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, and (2) possession of a firearm during and in relation to that drug trafficking crime. The first count carried a mandatory minimum term of imprisonment of ten years; the second carried a mandatory consecutive term of imprisonment of five years. The defendant was arrested in the Dominican Republic on March 16, 2010, and extradited on April 22, 2010.

The Agreement

On October 25, 2012, the parties executed the Agreement in which the defendant agreed to plead to a drug conspiracy charge carrying a mandatory minimum term of imprisonment of five years and a maximum sentence of 40 years ("(b)(1)(B)" charge) in satisfaction of the Count One conspiracy charge, which carried a mandatory minimum term of imprisonment of ten years ("(b)(1)(A)" charge). The defendant and Government stipulated to a guidelines range of 262 to 327 months' imprisonment, which reflected a two-level firearms adjustment and a two-level role adjustment. They agreed that a sentence within the range would "constitute a reasonable sentence," but that either party could seek a non-guidelines sentence.

The Plea

On the same day that the defendant executed the Agreement, October 25, the defendant and his brother Sotero Gomez entered pleas of guilty before this Court. The defendant was placed under oath and represented that he had had a sufficient opportunity to discuss with his attorney the charge to which he was pleading guilty, any defenses to that charge, and the consequences of the plea. He stated that he was satisfied with the representation his attorney was giving him. The Court advised the defendant of his right to proceed to trial, and all the rights set forth in Rule 11, and the defendant acknowledged that he understood those rights.

The Court then advised the defendant of the charge against him contained in Count One, including that he was charged with managing the production of thousands of packages of heroin, possessing kilogram quantities of heroin and possessing guns to protect the heroin and narcotics proceeds, from 2002 until the summer of 2003. The Court then explained in detail the statutory sentencing provisions that applied to the crime charged in Count One, including that while Count One contained a (b)(1)(A) charge, the Agreement provided that the Government would accept a plea to a (b)(1)(B) charge in satisfaction of the Indictment. The Court also described the safety valve provision of the law, which would permit the Court to impose a sentence below the mandatory minimum term of imprisonment that would otherwise apply. The defendant acknowledged that he had discussed this provision of the law with his attorney. At this point, the following colloquy occurred:

Q: Now, do you understand that if your attorney or anyone else has attempted to predict to you what your sentence will be that their prediction could be wrong? . . ...


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