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United States v. Gudino

United States District Court, N.D. Indiana, Hammond Division

December 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO GUDINO a/k/a

OPINION AND ORDER

RUDY LOZANO, District Judge.

This matter is before the Court on the: Motion Under 28 U.S.C. Section 2255 To Vacate, Set Aside, Or Correct Sentence By a Person in Federal Custody, filed by Antonio Gudino on May 29, 2013 (DE #944). For the reasons set forth below, the section 2255 motion is DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. The Clerk is ORDERED to distribute a copy of this order to Antonio Gudino, #XXXXX-XXX, McCreary USP, U.S. Penitentiary, Inmate Mail/Parcels, P.O. Box 3000, Pine Knot, KY 42635, or to such other more current address that may be on file for the Petitioner. Further, this Court declines to issue Defendant a certificate of appealability.

BACKGROUND

On November 16, 2011, a Third Superseding Indictment was filed against Defendant, Antonio Gudino a/k/a "Chronic", and twenty other defendants.[1] (DE #230). Gudino was charged in Count One and Count Two of the 15-count Third Superseding Indictment. Count One charged Gudino and others with conspiracy to participate in racketeering activity in violation of 18 U.S.C. § 1962. Count Two charged Gudino and others with conspiracy to possess with intent to distribute and distribute cocaine and marijuana in violation of 21 U.S.C. § 846.

On July 24, 2012, Gudino entered into a plea agreement with the Government, and the agreement was filed with this Court. (DE #495). In it, Gudino agreed to plead guilty to Count One of the Third Superseding Indictment, and the Government agreed to move to dismiss Count Two at the time of the sentencing. ( Id., ¶¶ 7(a) and 8). The Government and Gudino also reached certain agreements that were not binding on the Court. ( Id., ¶ 9). Specifically, they agreed that, "considering the totality of the circumstances for my involvement in the offense charged in Count One, that a just and appropriate sentence as to a term of imprisonment is a period of 120 months." ( Id., ¶ 9(e)). Additionally, they agreed that if Defendant continued to accept responsibility for his criminal conduct, he should receive a two point, and if eligible, an additional one point reduction in his Guideline offense level. ( Id., ¶ 9(a)). They also agreed that Gudino was responsible for the following drug quantities: 150 kilograms or more of a mixture or substance containing a detectable amount of cocaine and 1000 kilograms or more of a mixture and substance containing a detectable amount of marijuana. ( Id., ¶ 9(b)). Furthermore, Gudino and the Government agreed that Gudino possessed a firearm in connection with the offense and that Gudino should receive a twolevel reduction in offense level for being a minor participant in the criminal activity. ( Id., ¶ 9(c)-(d)). In exchange for these benefits, the plea agreement contained the following wavier:

I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed, and that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offenses as set forth in this plea agreement; with this understanding and in consideration of the government's entry into this plea agreement, I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, Unites States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, Unites States Code, Section 2255.

( Id., ¶ 10).

Further, Defendant agreed that his attorney had "done all that anyone could do to counsel and assist [him], " that he was offering his guilty plea "freely and voluntarily and of [his] own accord, " that "no promises [had] been made to [him] other than those contained in [the] agreement, " and that he had not been "threatened in any way by anyone to cause [him] to plead guilty in accordance with [the] agreement." ( Id., ¶¶ 14-15).

This Court held a change of plea hearing on July 31, 2012. (DE ##514, 968). When asked whether he was "fully satisfied with the counsel, representation, and advice given to you in this case by Mr. Earnst as your attorney?" Gudino replied "yes, Your Honor." (DE #968, p. 14). After Gudino read through paragraphs 7 through 13 of his plea agreement, the Court asked him whether he read it previously, understood it, agreed with it, and was asking the Court to approve it. Gudino answered yes to each of these questions. ( Id., pp. 14-15). Gudino acknowledged repeatedly that he agreed with the individual and collective terms of the plea agreement and confirmed that he wanted to plead guilty under the agreement. ( Id., pp. 14-52).

The Court informed Gudino that for Count One, "the most that you could get would be life imprisonment, a fine of up to $250, 000, or a combination of both, up to five years of supervised release, full restitution and a $100 special assessment, " and Defendant answered that he understood. ( Id., p. 19). Additionally, the Court advised Defendant that "[t]he least you could get would be probation, no fine, no supervised release, no restitution, but you still would have a $100 special assessment, " and Defendant indicated that he understood. ( Id., p. 19).

The Court also confirmed that Gudino understood that the Court would ultimately decide Defendant's sentence and that neither the Government's recommendations nor the Guidelines were binding. ( Id., pp. 21-31). This included clear notification that the Government's recommendation that Gudino be sentenced to a term of imprisonment of 120 months was not binding on the Court. ( Id., pp. 29-30). The following exchange occurred:

Q: Last nonbinding recommendation that you and the government are going to make is that considering the totality of the circumstances for your involvement in the offense in Count One, that you should get a term of imprisonment of 120 months. Do you understand that?
A: Yes, Your Honor.
Q: You understand this is only a recommendation, nothing more.
A: Yes, Your Honor.
Q: Who makes the final decision?
A: You do, Your Honor.
Q: And you understand that I have the authority to sentence you up to the amount of the statute, life imprisonment. Do you understand that?
A: Yes, Your Honor.
Q: Are you in agreement with that?
A: Yes, I am.

( Id. ).

During the hearing, this Court questioned Gudino extensively about his voluntary waiver of his right to appeal, including the following excerpts from that colloquy:

Q: Okay. Subparagraph 10 talks about appeals. Mr. Gudino, do you understand that in all criminal cases a defendant has a right to appeal his conviction and/or sentence in a case?
A: Yes, Your Honor.
Q: In this case, you have acknowledged that I have the jurisdiction and authority to sentence you up to the maximum provided for by the statute. Remember you and I talked about that when I told you you were facing up to life imprisonment, a fine of up to $250, 000, or a combination of both, up to five years of supervised release, full restitution and a $100 special assessment. Do you understand that?
A: Yes, Your Honor.
Q: What you're doing in this paragraph, Mr.
Gudino, is that you're giving up all of your rights to an appeal, both as to the manner in which you were found guilty or as to the sentence you ...

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