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Gaudio v. United States

United States District Court, E.D. Tennessee, Greeneville

December 14, 2016

RICHARD GAUDIO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Before the Court is a “Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, ” [Doc. 399][1], filed by Richard Gaudio, (“petitioner” or “Gaudio”). The United States has responded in opposition to the motion, [Doc. 409], and the matter is ripe for disposition. The Court has determined that the files and records in the case conclusively establish that Gaudio is not entitled to relief under § 2255 and no evidentiary hearing is necessary. For the reasons which follow, petitioner's motion will be DENIED and the case DISMISSED.

         I. Factual and Procedural Background

         Petitioner was charged in six counts of a superseding indictment returned by a federal grand jury on December 13, 2011, [Doc. 98]. He was charged in Count 1 with conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); in Counts 29, 30 and 31 with distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); in Count 32 with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and in Count 33 with possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). After a three day jury trial, petitioner was convicted on all counts, although of a lesser included charge, i.e., conspiracy to distribute and possess with intent to distribute less than 500 grams, as to Count 1. [Doc. 241]. Sentencing was set for January 7, 2013 and a presentence investigation report (“PSR”) was ordered.

         A post-trial motion for judgment of acquittal as to Count 1, [Doc. 243], was denied, [Doc. 320], and, after a continuance at the request of petitioner, [Docs. 313, 316], a sentencing hearing was conducted on March 27, 2013, [Doc. 352]. The Court overruled an objection by petitioner to the guideline range calculation in the PSR and subsequently adopted the PSR. Petitioner's criminal history category was I; his total offense level was 20 for counts 1, 29, 30, 31 and 32; and the resulting advisory guideline range was 33-41 months of imprisonment. Count 33 carried a 60-month mandatory minimum consecutive sentence and the total advisory guideline range was 93-101 months. [PSR, ¶¶ 33, 34, 40 and 58]. Petitioner was sentenced to a term of imprisonment of 93 months, the bottom of the advisory guideline range, [Doc. 352]. Judgment was entered on April 2, 2013, [Doc. 353]. Petitioner filed a notice of appeal on April 9, 2013, [Doc. 354], and the Sixth Circuit affirmed this Court's judgment on April 17, 2014, [Doc. 393]. The instant § 2255 motion was timely filed on October 14, 2014, [Doc. 399].

         A recitation of the facts established at trial is not necessary to the resolution of the single issue raised in petitioner's § 2255 motion. The facts relevant to the motion were set out in the Sixth Circuit's order as follows:

Gaudio argues on appeal that the trial court abused its discretion in failing to answer a juror question regarding conspiracy. During jury deliberations, the jury sent the court the following question:
In relation to charge # 3, is it appropriate for us to consider whether a conspiracy existed independent of the original conspiracy charged? By this we mean is it appropriate for us to consider whether the defendant was part of a new conspiracy or a second conspiracy of his own making?
The court discussed the question with the parties, stating that it was not sure what the jury meant by “charge #3.” Gaudio, through counsel, stated that the jury might have been thinking about the “conspiracy under 500 grams” listed as a third option on the jury verdict form and that it would not have made sense for the question to be about the third “actual charge” against Gaudio, because it involved “one of the sales” of cocaine. Gaudio then posited that the jury might have been thinking that Gaudio had his own independent conspiracy involving less than 500 grams and was asking whether it could consider that in Gaudio's conspiracy charge. The court responded that it “almost seemed as if the jury was asking about multiple conspiracies. The court noted that it had not given a charge about multiple conspiracies, and if it had, the charge would have stated clearly that even if Gaudio was a member of another conspiracy, the jury could only find him guilty if he was a member of the conspiracy charged in the indictment. However, the court stated that, because of the question's wording and the uncertainty involved, the court did not think it could do anything except tell the jury that it did not understand the question and thus could not answer it. The court stated further that although the jury was probably referring to charge # 3 on the verdict form, the court did not know what the jury meant by a conspiracy independent of the original conspiracy or a second conspiracy of Gaudio's own making.
Gaudio stated, “I think perhaps the instruction you gave about the multiple conspiracies might clear it up, that's at least how I read this; but, you know, we're not certain.” After further discussion, the court stated that if the jury was really asking about whether it could find Gaudio guilty of a conspiracy not charged in the indictment, the answer would be no, but the court would be speculating as to whether that was the question being asked by the jury. The court then proposed the following answer: “Members of the jury: Your precise question is unclear to the court. At this time I cannot give you any instructions beyond what's already been given. You have a copy of the court's instructions and have the verdict form.” When asked whether the answer was “[a]ll right, ” both parties answered affirmatively.

[Doc. 393, at 2-3].

         II. Standard of Review

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States,285 F.2d 733, 735 (6thCir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is ...


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