United States District Court, S.D. New York
Carlos Gonzalez Northeast Ohio Correctional Center Youngstown, Ohio, Petitioner (Pro Se).
Niketh Velamoor Assistant United States Attorney, New York, NY, for Respondent.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Carlos Gonzalez brings this prose motion to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255").He challenges his sentence on the ground that he was denied effective assistance of counsel at his sentencing as a result of his counsel's failure to seek a reduced sentence based on the harsh conditions of his confinement at a Colombian prison and the Metropolitan Correctional Center in Manhattan (the "MCC"). For the following reasons, the motion is DENIED.
A. The Offense Conduct
Between 1995 and 1999, Gonzalez was a member of a violent criminal organization that was responsible for approximately fifty armed robberies throughout the New York City metropolitan region. During two robberies he participated in, "members of the robbery crew shot and killed their victims: a retired New York City Police Detective who was acting as a courier for a meat company and a female drug courier." On December 28, 1999, Gonzalez was charged in a twelve-count Superseding Indictment. On March 13, 2002, he was arrested in Colombia pursuant to a provisional arrest warrant and detained there pending extradition to the United States. He was released into the custody of the United States Marshals Service for transport to the United States in February 2003.
B. The Guilty Pleas and Superseding Information
On July 24, 2003, Gonzalez pled guilty, without the benefit of a plea agreement, to three counts of a Superseding Indictment - participating in a racketeering enterprise; conspiracy to commit racketeering; and conspiracy to commit a robbery affecting interstate commerce. On June 29, 2010, the Government filed a Superseding Information, which charged Gonzalez in three counts - the use of a firearm during a crime of violence or a narcotics conspiracy to cause the death of a person; conspiracy to commit a robbery affecting interstate commerce; and the use and carrying of a firearm during a crime of violence. That same day, he pled guilty pursuant to a cooperation agreement to each count of the Superseding Information. Under the cooperation agreement, he was required to affirm his earlier plea of guilty with respect to the Superseding Indictment.
On October 20, 2011, I held a sentencing hearing. As indicated on the record of the hearing, I reviewed the Probation Department's Revised Pre-Sentence Report dated October 17, 2011 (the "PSR"); the Government's letter pursuant to section 5K1.1 (the "5K1 letter") of the United States Sentencing Guidelines ("the Guidelines") describing Gonzalez's substantial assistance; victim impact statements forwarded by the Government, requesting the maximum sentence available; and a letter from Gonzalez. Defense counsel indicated that he had reviewed the materials with his client, and, without objection, I adopted the findings of fact and Guidelines calculation set forth in the PSR. I also acknowledged the Government's request for a departure from the Guidelines based on Gonzalez's cooperation.
Gonzalez's total offense level was 42, and, based on his prior convictions, his Criminal History Category was III. This resulted in a Guidelines sentencing range of three hundred and sixty months to life in custody, to be followed by a mandatory consecutive term of twenty-five years. However, based on the 5K1 letter, I had the discretion to exclude the mandatory twenty-five-year consecutive sentence. After considering "all of the sentencing factors" set forth in section 3553 of title 18 of the United States Code ("section 3553"), I imposed a sentence of one hundred and eighty months in custody to be followed by five years of supervised release. Without the 5k1 letter, Gonzalez's sentence "would more likely have been life imprisonment" because of the murders and other forms of violence associated with his crimes.
III. LEGAL ...