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Case No. 4:96cr56-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:96cr56-RH/CAS

OSVALDO FRANCISCO GONZALEZ,

Defendant.

____________________________________/

ORDER DENYING THE UNTIMELY § 2255 MOTION 

AND THE MOTION TO SET A PAYMENT SCHEDULE 

UNDER THE INMATE FINANCIAL RESPONSIBILITY ACT

Pending are challenges to a judgment of conviction and sentence entered 

many years ago. The challenges are procedurally and substantively unfounded. 

This order denies relief.

I

In 1998, a jury convicted the defendant Osvaldo Francisco Gonzalez of 

conspiracy to possess with intent to distribute cocaine and cocaine base. His 

sentence included 30 years in the Bureau of Prisons, a term of supervised release,

and a $1,000,000 fine, payable immediately. On direct appeal, Mr. Gonzalez 

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Case No. 4:96cr56-RH/CAS

unsuccessfully challenged the conviction and sentence, including the fine. The 

United States Court of Appeals for the Eleventh Circuit affirmed.

Mr. Gonzalez next challenged the conviction and sentence under 28 U.S.C. 

§ 2255. An error in the term of supervised release was corrected, but other relief 

was denied. Judgment on the § 2255 motion was entered in 2004. Mr. Gonzalez 

filed a notice of appeal. In 2005, the Eleventh Circuit issued its mandate 

dismissing the appeal on the ground that Mr. Gonzalez had not obtained, and was 

not entitled to, a certificate of appealability.

More recently, Mr. Gonzalez challenged his sentence, including the fine, 

through additional motions. One motion sought relief under Federal Rule of 

Criminal Procedure 35(b). The Eleventh Circuit upheld the denial of that motion, 

noting that Mr. Gonzalez was not entitled to relief under Rule 35(b) and could not 

seek relief under § 2255 unless he first obtained authorization from the Eleventh 

Circuit to file a second or successive § 2255 motion. See United States v. 

Gonzalez, 515 F. App’x 794, at 794 n.1 (11th Cir. 2013) (unpublished opinion). 

That Eleventh Circuit opinion is included in this record. ECF No. 817. 

Another motion sought an order modifying the amount of payments 

collected by the Bureau of Prisons under the Inmate Financial Responsibility Act. 

That motion was denied on September 21, 2012. ECF No. 807. 

Mr. Gonzalez now has filed two more motions. 

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II

The first pending motion seeks relief under § 2255 on two grounds: failure 

to submit the issue of drug amount to the jury, and ineffective assistance of counsel 

in connection with the drug-amount issue. The motion is unfounded both 

procedurally and on the merits. 

The motion is procedurally unfounded on two grounds. First, the motion is 

plainly barred by the one-year statute of limitations. Second, the motion is a 

second or successive § 2255 motion, as the Eleventh Circuit ruled in the last 

appeal. A defendant may file a second or successive § 2255 motion only with 

advance authorization from the court of appeals.

The motion also is unfounded on the merits. At the time of the trial, the law 

of the circuit was that drug amount was a sentencing factor not properly submitted 

to the jury. This later changed, see, e.g., Apprendi v. New Jersey, 530 U.S. 466 

(2000), but Apprendi and its progeny are not retroactively applicable to cases on 

collateral review. See, e.g., McCoy v. United States, 266 F.3d 1245, 1256-58 (11th 

Cir. 2001). Mr. Gonzalez’s attorney did not render ineffective assistance by failing 

to anticipate this change in the law.

III

Mr. Gonzalez’s second pending motion seeks relief from the fine. The fine 

was properly imposed, as the Eleventh Circuit held on direct appeal. As set out in 

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response to an earlier motion to remit the fine, a district court has no authority to 

reduce a fine, with exceptions not applicable here. See Order of August 11, 2008, 

ECF No. 771, at 2 (citing 18 U.S.C. § 3573). 

Mr. Gonzalez takes issue with the payment schedule established by the 

Bureau of Prisons, but that payment schedule is part of the Inmate Financial 

Responsibility Program; the payment schedule is not part of the judgment. The 

judgment required payment of the fine immediately. When the court imposes a 

fine and makes it payable immediately, the fine is payable immediately. The 

Bureau of Prisons may set a schedule for an inmate’s required payments toward the 

unpaid obligation—not as part of the judgment, but to require the inmate to comply 

with the judgment to the extent of the inmate’s ability while the inmate is in the 

Bureau’s custody. See, e.g., United States v. Ellis, 522 F.3d 737, 738 (7th Cir. 

2008); Bramson v. Winn, 136 F. App’x 380, 381 (1st Cir. 2005); Matheny v. 

Morrison, 307 F.3d 709, 712 (8th Cir.2002); McGhee v. Clark, 166 F.3d 884, 886 

(7th Cir.1999). 

IV

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

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Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

Mr. Gonzalez has not made the required showing. This order thus denies a 

certificate of appealability. 

V

For these reasons,

1. Mr. Gonzalez’s motion under 28 U.S.C. § 2255, ECF No. 821, is 

dismissed for lack of jurisdiction. The clerk must enter a judgment so providing.

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2. Mr. Gonzalez’s “petition to assign fine payment amount,” ECF No. 

820, in effect a motion to set a schedule for payment of his fine, is DENIED.

SO ORDERED on April 10, 2014.

s/Robert L. Hinkle

United States District Judge

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