United States v. Gillard

1

UNITED STATES OF AMERICA v. DONAVAN GILLARD, Defendant.

No. 20 CR 626 (PMH)

United States District Court, S.D. New York

September 30, 2024

OPINION AND ORDER

Philip M. Halpern, United States District Judge

Donavan Gillard (“Defendant”) moves under 28 U.S.C § 2255 to vacate the August 24, 2022 amended judgment on the grounds that he was denied his Sixth Amendment right to the effective assistance of counsel rendered in the plea and sentencing contexts by his then-counsel's failure to object to the calculation of his criminal history under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). (Doc. 682). Defendant also moves for a sentence reduction under 18 U.S.C. § 3582(c) because of the retroactive application of Guidelines Amendment 821. (Doc. 894).

For the reasons set forth below, Defendant's motion under 28 U.S.C. § 2255 to vacate his sentence is DENIED. Defendant's motion for a sentence reduction based on Amendment 821 to the Guidelines is GRANTED.

BACKGROUND

The facts set forth herein are derived from Defendant's motion (Doc. 682) and reply memorandum of law (Doc. 739), the Government's memorandum of law in opposition (Doc. 732 “Opp.”), and the record of the underlying criminal proceeding, including the Supplemental Presentence Investigation Report prepared by the Probation Office and filed on January 25, 2024 (Doc. 797, “PSR”).

Defendant was a high-ranking leader of a violent “Bloods” gang known as the Untouchable Gorilla Stone Nation (“Gorilla Stone”). (PSR ¶¶ 61-62). The gang operates throughout New York, both inside and outside of prisons, and across other states including Florida and North Carolina. (Id. ¶ 33). Members of Gorilla Stone terrorized the communities in which it operated, engaging in acts of violence including murder, attempted murders robberies, and a slashing. (Id. ¶¶ 37 40). Members of Gorilla Stone were also heavily involved in narcotics trafficking, preying on vulnerable individuals in these communities. (Id. ¶¶ 36-38). Members of Gorilla Stone also engaged in wire fraud, including defrauding the COVID-19 unemployment benefits program ultimately using those funds to further Gorilla Stone's illegal activities. (Id. ¶ 55). Defendant was one of its highest-ranking leaders, serving both as the Godfather of a “cave” and the acting Street Leader of the Gorilla Stone organization overall. (Id. ¶¶ 61-62).

An indictment first issued in this case on or about November 23, 2020. (Doc. 1). On November 4, 2021, Defendant appeared before this Court and pled guilty to Counts One and Fourteen of the Third Superseding Indictment pursuant to a written plea agreement dated August 21, 2020. (Doc. 382, “Plea Tr.”). Count One charged Defendant with participating in a racketeering conspiracy from in or about 2010 to December 2020, in violation of Title 18, United States Code, Section 1962(d). Count Fourteen charged Defendant with using and carrying a firearm in furtherance of a drug trafficking crime, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i).

After placing Defendant under oath, the Court conducted a thorough allocution of him. (Id. at 3-5). Among other things, Defendant affirmed that he had attended school through the twelfth grade and that in the past 24 hours, he had not consumed any drugs, alcohol, pills, or medicine.

(Id. at 4). Defendant further affirmed that his mind was clear and that he understood what was happening at the proceeding. (Id.).

Defendant confirmed that he had “enough time and opportunity” to discuss the case with his attorney and that he was satisfied with his attorney's representation of him. (Id. at 4-5). The Government and defense counsel likewise represented that they had no doubts as to Defendant's competence to plead guilty. (Id. at 5). Accordingly, the Court found that, on the basis of Defendant's responses to the Court's questions, its observations of his demeanor, and the views of counsel, Defendant was fully competent to enter an informed plea. (Id.).

Under the terms of the August 21, 2020 plea agreement, among other things, the Government agreed to accept a guilty plea allocution from Defendant to Counts One and Fourteen of the Third Superseding Indictment. (Id. at 8-10). Defendant agreed in the plea agreement that the 2010 Conviction for attempted criminal possession of a weapon in the second degree was assigned three criminal history points under U.S.S.G. § 4A1.1(a). Defendant further stipulated and agreed that because he committed the instant offense while under post-release supervision from the 2010 Conviction, an additional two criminal history points were added under U.S.S.G. § 4A1.1(d), resulting in a total of five criminal history points, and a Criminal History Category of III. The parties stipulated to a final offense level of 34 under the Guidelines; five criminal history points; and a Stipulated Guidelines Range of 248 to 295 months' imprisonment, with a mandatory minimum of 60 months' imprisonment on Count Fourteen to be served consecutively to any other sentence imposed. (See id. at 19-20).^[1] Defendant admitted the forfeiture allegation with respect to Count One of the Indictment and agreed to forfeit a sum of money equal to $50,000. (Id. at 2122).

Defendant also stipulated in the plea agreement that he would “not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241, of any sentence within or below the Stipulated Guidelines Range of 248 to 295 months' imprisonment” with a mandatory minimum of 60 months' of imprisonment. (Id. at 20).

The Court, at the November 4, 2021 hearing, conducted a thorough colloquy pursuant to Federal Rule of Criminal Procedure 11 to determine whether the plea was knowing and voluntary and whether there was a factual basis for the plea. (See generally Plea Tr.). The Court confirmed that Defendant understood the rights he was giving up by pleading guilty, and that he would be sentenced on the basis of his guilty plea. (Id. at 5-8). Defendant acknowledged that he understood he was giving up those rights, except for his right to counsel. (Id.). The Government then, at the Court's direction, set forth the elements of the offense to which Defendant was pleading guilty. (Id. at 11-12). The Court advised Defendant of the maximum penalties he would face as a result of his guilty plea and confirmed that he understood he faced a five-year mandatory minimum sentence. (Id. at 12-14).

The Court confirmed that Defendant understood that, when imposing a sentence, the Court would consider the Guidelines along with the factors set forth in 18 U.S.C. § 3553(a), and could impose a sentence that was higher or lower than that called for by the Guidelines. (Id. at 15-17). Defendant confirmed that he understood that he would not be permitted to withdraw his guilty plea if the sentence differed from what he expected or from the Stipulated Guidelines Range set forth in the plea agreement. (Id. at 17).

The Court next confirmed that Defendant had read the plea agreement, had discussed “every aspect of it” with his attorney, and understood it fully. (Id. at 17-18). Defendant swore that apart from the plea agreement, no one had made him any promises or used any threats, force, or coercion to induce him to plead guilty or to enter into the plea agreement. (Id. at 19). The Court further confirmed that Defendant understood that he was giving up his right to appeal or otherwise attack or challenge his conviction and sentence, as long as his sentence was within or below the Stipulated Guidelines Range. (Id. at 20).

The Government was asked to summarize its proof to ensure there was an adequate factual basis to support Defendant's plea. (Id. at 27). The Government's proof included:

First, extractions from the defendant's cell phone showing that the defendant trafficked marijuana with members of Gorilla Stone, sold firearms with them, and also participated in unemployment insurance fraud schemes with fellow gang members; Second, recorded calls from wiretaps of high-level Gorilla Stone leaders which would show that the defendant himself had a high-ranking position in a Gorilla Stone subset, or Cave; Third, social media evidence which would show the highly organized nature of Gorilla Stone and the rules that Gorilla Stone members abided by, including that members had to be armed; Fourth, cooperator testimony which would establish that members of Gorilla Stone were armed, they sold drugs, and that the defendant himself was armed when selling narcotics. This testimony would also establish, your Honor, that the defendant pushed the button for ordering an act of violence which led to a shooting in Brooklyn; Fifth, photographs from the defendant's cell phone and other seized cell phones showing that the defendant and other members of the gang stored firearms in close proximity to narcotics that they sold.

(Id. at 23-24).

Defendant affirmed that he heard the Government's summary of its proof, and that it was substantially accurate. (Id. at 24, 25). Defendant then made a factual allocution and stated that he was a part of a gang from about 2010 to 2020; that he possessed and carried a firearm in drug trafficking; and that he sold marijuana. (Id. at 25). Defendant also confirmed, in response to questions from the Court, that he “was a leader” in Gorilla Stone; that he “take[s] full responsibility for the shooting in Brooklyn” because the crime was committed “to please [him] with - furthering the gang”; and that he obtained personal identification information from another person to file for unemployment benefits and collected the checks once approved. (Id. at 25-31).

The Court found that Defendant...