United States v. Jose Gonzalez-Sosa , 459 F. App'x 238 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4675
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JOSE MANUEL GONZALEZ-SOSA, a/k/a        Jose Manuel Gonzales,
    a/k/a    Sergio  Gonzalez-Lopez,        a/k/a   Juan   Manuel
    Gonzalez-Sosa,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   N. Carlton Tilley,
    Jr., Senior District Judge. (1:10-cr-00241-NCT-1)
    Submitted:   December 16, 2011            Decided:   December 22, 2011
    Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by unpublished
    per curiam opinion.
    Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
    Assistant Federal Public Defender, Greensboro, North Carolina,
    for Appellant. Angela Hewlett Miller, Assistant United States
    Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jose Manuel Gonzalez-Sosa pled guilty, pursuant to a
    written   plea   agreement,   to    one     count    of     transferring          false
    identification      documents,      in      violation         of      18      U.S.C.
    § 1028(a)(2),    (b)(1)(A)(i)      (2006)    (Count       One);    one     count     of
    knowingly possessing document-making implements for making false
    identification      documents,      in      violation         of      18      U.S.C.
    § 1028(a)(5), (b)(1)(C) (2006) (Count Four); and one count of
    illegal reentry after removal as a convicted felon, in violation
    of 8 U.S.C. § 1326(a), (b)(1) (2006) (Count Six).
    Gonzalez-Sosa’s presentence report (“PSR”) applied a
    sixteen-level      enhancement,      pursuant         to     U.S.        Sentencing
    Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2010), because
    he had been deported after conviction for a felony crime of
    violence, citing a 2001 conviction in North Carolina state court
    of a “Felony Crime Against Nature.”             Based on this enhancement
    and the resulting Guidelines range, the district court sentenced
    Gonzalez-Sosa to forty-one months’ imprisonment.                    Gonzalez-Sosa
    timely appeals.
    On    appeal,   Gonzalez-Sosa’s          brief    raises        only    one
    issue, challenging this sixteen-level enhancement in light of
    our recent decision in United States v. Simmons, 
    649 F.3d 237
    (4th Cir. 2011) (en banc).            He has also filed an unopposed
    motion to vacate his sentence and remand for resentencing in
    2
    light of      Simmons.     Gonzalez-Sosa claims that under Simmons, his
    prior conviction for Crime Against Nature does not constitute a
    felony.
    Because Gonzalez-Sosa did not object in the district
    court to the enhancement, we review the issue for plain error.
    See United States v. Muhammad, 
    478 F.3d 247
    , 249 (4th Cir. 2007)
    (reviewing for plain error where defendant did not object to
    district court’s denial of defendant’s allocution).                       At the time
    of     sentencing,       the   district        court’s    application          of    the
    enhancement was consistent with our decision in United States v.
    Harp, 
    406 F.3d 242
    (4th Cir. 2005).               Under North Carolina law, a
    defendant convicted of a Class I felony, as was Gonzalez-Sosa,
    with    the   worst     possible   history      (prior    record     level     VI)   and
    aggravating     sentencing     factors        could    have    received    a   maximum
    fifteen        month       sentence.             See          N.C.    Gen.          Stat.
    § 15A-1340.17(c)-(d) (2009).            Thus, under Harp, Gonzalez-Sosa’s
    prior Class I felony conviction constituted a crime punishable
    by imprisonment for a term exceeding one year.                       See 
    Harp, 406 F.3d at 246-47
    .    Accordingly,     at     the    time     Gonzalez-Sosa       was
    sentenced, the Crime Against Nature conviction plainly qualified
    as a felony conviction for a crime of violence.
    However, in Simmons we overruled Harp, holding that a
    North Carolina offense may not be classified as a felony based
    upon the maximum aggravated sentence that could be imposed upon
    3
    a repeat offender if the individual defendant was not eligible
    for such a sentence.                See 
    Simmons, 649 F.3d at 241
    , 246-47.
    Under Simmons, Gonzalez-Sosa’s Crime Against Nature conviction
    was   not        punishable    by   imprisonment    for   a     term   exceeding   one
    year.        Even assuming the State sought an aggravated sentence,
    which the state court judgment belies, with his prior record
    level       of    II,   the    maximum   sentence    Gonzalez-Sosa       could     have
    received for his Class I felony was ten months’ imprisonment.
    See N.C. Gen. Stat. § 15A-1340.17(c) (longest minimum sentence
    for a Class I felony with prior record level II is eight months’
    imprisonment); N.C. Gen. Stat. § 15A-1340.17(d) (maximum term of
    imprisonment for an eight-month minimum sentence is ten months). 1
    Accordingly,       we   affirm    Gonzalez-Sosa’s       conviction,
    which he does not challenge on appeal.                 We grant Gonzalez-Sosa’s
    motion to vacate, vacate his sentence, and remand this case to
    the district court for resentencing in light of Simmons. 2                           We
    dispense         with   oral     argument    because      the    facts    and    legal
    1
    We of course do not fault the district court for its
    reliance upon, and application of, unambiguous circuit authority
    at the time of Gonzalez-Sosa’s sentencing.
    2
    Although Gonzalez-Sosa does not raise this issue, it
    appears that Simmons will affect the maximum sentence applicable
    to his 8 U.S.C. § 1326 conviction. We leave this issue for the
    district court to evaluate upon resentencing.
    4
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED
    5
    

Document Info

Docket Number: 11-4675

Citation Numbers: 459 F. App'x 238

Judges: Gregory, Duncan, Wynn

Filed Date: 12/22/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024