United States v. Jose Manuel Gonzalez , 157 F. App'x 124 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 18, 2005
No. 05-12107
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00101-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 18, 2005)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Jose Manuel Gonzalez appeals his total 93-month 1 sentence, imposed after
he pled guilty to one count of conspiracy to commit robbery and one count of
carrying a firearm during a crime of violence, violations of 18 U.S.C. §§ 1951(a)
and 924(c)(1)(A)(i), respectively. On appeal, he argues that he was entitled to a
two-level minor role reduction pursuant to U.S.S.G. § 3B1.2. For the reasons set
forth more fully below, we affirm.
Gonzalez pled guilty before a magistrate to the above-referenced offenses.
According to the undisputed facts in the presentence investigation report (PSI), the
offense conduct began around August 25, 2004, when an undercover ATF agent
told Renato Lebron that he was a disgruntled courier for a Colombian narcotics
trafficking organization looking for a home-invasion crew capable of robbing a
narcotics stash house, and that the agent could meet with Lebron in a few weeks to
discuss the plan.
On September 8, the agent met with Lebron, and asked Lebron if he were
capable of robbing the Colombians’ stash house, to which Lebron responded that
he had done “big jobs” before. The agent provided details to Lebron, and informed
him of when the next delivery was scheduled to arrive. Lebron wanted to know the
address of the stash house, but the agent indicated that the address would not be
1
This total sentence represents the guidelines calculation with respect to Count 1 and the
mandatory 60-month consecutive sentence with respect to Count 2. (See R3 at 12, 15; R1-90 at 2).
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known until 30 minutes before the scheduled pick up. Lebron told the agent that
he had two associates who would assist him with the robbery, and stated he had the
people, the pistols, and everything else he needed to complete the robbery. Lebron
and the agent agreed to split the proceeds of the robbery, and Lebron indicated that
his plan was to enter the stash house behind the agent, otherwise they would have
to enter as impersonating police officers.
Less than a week later, a CI informed ATF agents that Lebron had recruited
four individuals to assist him with the robbery, and reported that Lebron had two
nine-millimeter pistols with silencers, a machine pistol with silencer, a bullet proof
vest and masks, and a police interceptor, which was to be used as the getaway car.
Later, the CI informed agents that Lebron had indicated that firearms, silencers,
and vests would be used by the four individuals conducting the robbery, and that
Lebron had no intention of sharing the proceeds.
On October 6, the agent met with Lebron, who indicated that cocaine would
be arriving on October 8. Lebron stated that his crew would be armed, and that his
plan was to infiltrate the stash house as the agent was exiting. During the meeting,
Margarito Cruz Sanchez arrived and greeted Lebron and the agent, who, after
receiving Lebron’s approval, told Sanchez and Lebron about the undercover
scenario.
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On October 8, surveillance agents observed Lebron, Benjamin Gutierrez,
Gonzalez, and Sanchez arrive at a personal storage facility in Naples, Florida.
Sanchez was driving a white Cadillac, with Gonzalez in the front passenger seat
and Lebron and Gutierrez in the backseat. Gonzalez remained in the car while the
other three passengers exited. The agent then arrived and opened the driver’s side
door, communicating to all of the individuals, including Gonzalez, that there would
be two individuals in the stash house, one of whom was armed. Gonzalez was seen
nodding his head in an affirmative manner while listening. Lebron explained that,
as the agent exited the stash house, he would “tie up” the agent, at which point
Gutierrez would put a gun to the agent’s head and demand that he comply. The
agent indicated that the guards at the stash house would likely shoot back if Lebron
or a member of his crew fired first.
As the agent began walking away, law enforcement arrived on the scene,
arresting Lebron, Gutierrez, Gonzalez, and Sanchez. A search of the Cadillac
revealed a loaded .9mm semi-automatic pistol, a .380 caliber semi-automatic
pistol, and three particle masks, as well as four latex gloves. After being advised
of his rights, Lebron stated that he had discussed the plan with each member of the
conspiracy, and stated that each person had an assigned job, Gonzalez’s task being
to stay with the getaway car. Gonzalez, in a post-arrest statement, disclosed that
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Lebron had asked him, on October 7, if he wanted to drive and make some money.
On October 8, Gonzalez went to Lebron’s home, met with Lebron, Gutierrez, and
Sanchez, and they drove to a convenience store, where Gonzalez noticed the guns
in the car.
At his plea colloquy, Gonzalez admitted that he knew that there was going to
be a robbery. He recalled seeing the guns in the car approximately five minutes
before arriving at the storage facility, and that the guns were behind the front
passenger’s seat. Gonzalez stated that his job was to drive the getaway car and
that, initially, he did not know who or what was going to be robbed. It was not
until they were on their way to the storage facility that Gonzalez learned that drugs
were the target of the robbery. Gonzalez stated that he was never supposed to go
to the residence or the place where the robbery was to take place, and that his only
job was to drive the other defendants to a place, drop them off, and then pick them
up. For his part, Gonzalez was supposed to receive $5,000. Finally, Gonzalez
stated that he believed the guns in the car were going to be used in the robbery.
The district court accepted Gonzalez’s plea as knowing and voluntary.
The PSI did not group Count 1 (robbery) with Count 2 (carrying a firearm
during a crime of violence) to avoid double counting and, because Count 2 carried
a statutorily mandated consecutive sentence, only calculated a guideline range for
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the robbery charge. As to the robbery count, the PSI set Gonzalez’s base offense
level at 20, pursuant to U.S.S.G. § 2B3.1(a). Gonzalez’s offense level was not
enhanced for the possession of a firearm because of the separate firearm charge
under 18 U.S.C. § 924(c), but a one-level enhancement was added because the
taking of cocaine was the object of the offense, pursuant to U.S.S.G. § 2B3.1(b)(6).
The PSI next determined that Gonzalez’s role in the offense was that of an “active
and average participant,” and he was not given either an aggravating or mitigating
role adjustment. Gonzalez was then credited with a three-level reduction for
acceptance of responsibility under § 3E1.1 for a total offense level of 18. With no
criminal history, Gonzalez was a category I, which, at offense level 18, provided
for an advisory sentencing range of 27-33 months’ imprisonment, with a
mandatory 60-month sentence to be imposed consecutively for Count 2.
Gonzalez lodged only one objection to the PSI, arguing that he was a minor
participant in the offense and should receive a two-level reduction under U.S.S.G.
§ 3B1.2(b). At sentencing, Gonzalez argued that (1) he was substantially younger
than his codefendants; (2) his only role was as a driver, not an active participant in
the robbery itself; and (3) his role was minor compared to other participants, like
Gutierrez, who was involved in negotiations and was to actively participate in the
robbery by holding a gun to the agent’s head.
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The district court ruled against Gonzalez, finding that:
Certainly, Mr. Gonzalez’s role is different than the other three
participants; but I agree . . . that it was both active and integral to the
success. He was going to be the getaway driver, and I don’t see that
role being . . . substantially different than the roles of Mr. Sanchez and
Mr. Gutierrez. Mr. Lebron is a different situation, but . . . the Court
finds that the defendant should not be entitled to a minor role.
Thus, the court overruled Gonzalez’s objections and adopted the factual
findings and application of the guidelines as set forth in the PSI. Based on those
findings, it found Gonzalez’s total offense level to be 18, his criminal history
category to be I, with a resulting range of 27 to 33 months’ imprisonment as to
Count 1, and an additional 60-month consecutive sentence required for Count 2.
After hearing from both Gonzalez and the government as to an appropriate
sentence for Count 1, the district court sentenced him to 33 months’ imprisonment
to be followed by a 60-month consecutive sentence on Count 2, for a resulting
sentence of 93 months’ imprisonment.
On appeal, Gonzalez argues that he was less culpable than most of the other
participants because the entire offense was arranged, planned, and discussed
among law enforcement and the other participants, not Gonzalez. He argues that
he had no role in the decision-making process, was told solely to stay in the vehicle
and serve as a getaway driver, and only joined the conspiracy at the very last
moment when told he could make some money by driving. Gonzalez argues that
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he was made aware of the basic components of the offense just prior to being
arrested, and that requiring him to establish more to qualify for the reduction
would misinterpret the guideline and its purpose. He argues that, even though the
guidelines are no longer binding, the proper remedy would be a remand because
the guidelines were incorrectly calculated.
“[A] district court’s determination of a defendant’s role in the offense is a
question of fact to be reviewed under the clearly erroneous standard.” United
States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).
Under U.S.S.G. § 3B1.2(b), a defendant qualifies for a two-level reduction to his
offense level if he was a minor participant in the offense. U.S.S.G. § 3B1.2(b).
The guidelines further define a minor participant as one “who is less culpable than
most other participants, but whose role could not be described as minimal.” Id.,
comment. (n.5).
As we clarified in De Varon, when determining whether a minor-role
reduction is warranted, a district court should consider (1) whether the defendant
played a minor role in relation to the relevant conduct for which he was held
accountable and (2) where appropriate, the culpability of the defendant as
measured against that of other participants in the relevant conduct. De Varon, 175
F.3d at 940, 944. “[T]he conspiracy on which a defendant’s base offense level is
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founded is the relevant conspiracy for determining role in the offense.” Id. at 942(quotation omitted). “[T]he district judge is in the best position to weigh and
assess both the defendant’s role in her relevant conduct and the relative degrees of
culpability of the other participants in that conduct. Intensely factual inquiries
such as these are properly consigned to the experienced discretion of the district
judge.” Id. at 939.
We conclude that the district court did not clearly err by denying Gonzalez a
minor-role reduction. The district court found that Gonzalez’s role as a getaway
driver, while different from the other codefendants, was still an integral to the
success of the prospective criminal conspiracy to commit robbery. The relevant
conduct for which he was held accountable was for robbery and having the
objective of taking a controlled substance. Only because Gonzalez was separately
charged and sentenced for aiding and abetting the carrying of a firearm during a
violent crime did he avoid further accountability for it pursuant to U.S.S.G.
§ 2B3.1(b)(2)(C). However, the facts in the record indicate that Gonzalez was
aware that a robbery was going to take place, aware that there were guns that were
likely to be used during the commission of the robbery, aware that drugs were the
object of the crime, and was poised to earn $5,000 for driving the getaway car after
the commission of the crime. Indeed, the PSI reflects that Gonzalez nodded his
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head affirmatively while the undercover agent gave instructions to codefendants.
While it is true that Gonzalez’s role was not to personally carry a weapon or,
in a literal sense, commit the actual robbery by entering the premises and stealing
cocaine, his role in ensuring that the robbery was successful, i.e., by getting
himself and his codefendants quickly and safely away from the scene for the sum
of $5,000, made him as integral and average a participant as one actually
committing the robbery itself. Cf. United States v. Pinkney, 15 F.3d 825, 828 (9th
Cir. 1994) (persuasively noting that “one kind of average participant in a robbery
would be the person who drove the robber to the scene and then drove him or her
away again, and expected a share of the loot.”).
Even though it has been argued that Gonzalez’s role, limited as it was, might
be worthy of a minor-role reduction, we have held that:
In the final analysis, this decision falls within the sound discretion of
the trial court. Indeed, we acknowledge that a similar fact pattern may
on occasion give rise to two reasonable and different constructions.
This is inherent in the fact-intensive inquiry specifically contemplated
by the Guidelines. As the Supreme Court has recognized, a trial
court’s choice between ‘two permissible views of the evidence’ is the
very essence of the clear error standard of review. So long as the
basis of the trial court’s decision is supported by the record and does
not involve a misapplication of a rule of law, we believe that it will be
rare for an appellate court to conclude that the sentencing court's
determination is clearly erroneous.
De Varon, 175 F.3d at 945 (citation omitted).
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Based on the foregoing, we conclude that the district court’s finding that
Gonzalez’s role was integral to the success of the criminal conspiracy and,
therefore, not substantially different from the roles of Sanchez and Gutierrez, is
amply supported by the record and is not clearly erroneous. We, therefore, affirm.
AFFIRMED.
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