United States v. Pedro Gomez-Jimenez , 546 F. App'x 183 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5009
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEDRO GOMEZ-JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00375-D-3)
Submitted: September 26, 2013 Decided: November 12, 2013
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Gomez-Jimenez (“Pedro”) pled guilty to
conspiracy to distribute and possess with intent to distribute
280 grams or more of cocaine base and five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846 (2006), and aiding and
abetting the possession with intent to distribute 280 grams or
more of cocaine base and five kilograms or more of cocaine, in
violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1)
(West 2006 & Supp. 2013). The district court calculated Pedro’s
Guidelines range at 168 to 210 months’ imprisonment, enhancing
his base offense level for possession of a firearm and use of a
minor, U.S. Sentencing Guidelines Manual (“USSG”)
§§ 2D1.1(b)(1), 3B1.4 (2009 & Supp. 2010), and sentenced Pedro
to concurrent terms of 180 months’ imprisonment.
Pedro challenges this sentence on appeal. We affirm.
We review Pedro’s sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006)
2
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49–51.
If the sentence is free of “significant procedural error,” we
review it for substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id. at 51.
Pedro argues that the district court erred in
enhancing his offense level under USSG § 2D1.1(b)(1). Under
USSG § 2D1.1(b)(1), a two-level increase in a defendant’s
offense level is warranted “[i]f a dangerous weapon (including a
firearm) was possessed.” The enhancement is proper when the
weapon at issue “was possessed in connection with drug activity
that was part of the same course of conduct or common scheme as
the offense of conviction,” United States v. Manigan, 592 F.3d
621, 628-29 (4th Cir. 2010) (internal quotation marks omitted),
even in the absence of “proof of precisely concurrent acts, for
example, gun in hand while in the act of storing drugs, drugs in
hand while in the act of retrieving a gun.” United States v.
Harris, 128 F.3d 850, 852 (4th Cir. 1997) (internal quotation
marks omitted). “Rather, proof of constructive possession of
the [firearm] is sufficient, and the Government is entitled to
rely on circumstantial evidence to carry its burden.” Manigan,
592 F.3d at 629. Further, we attribute weapons possessed by
co-conspirators to a defendant when “under the circumstances of
the case, it was fair to say that it was reasonably foreseeable
3
to defendant that his co-participant was in possession of a
firearm.” United States v. Kimberlin, 18 F.3d 1156, 1159-60
(4th Cir. 1994) (internal quotation marks and alteration
omitted). The defendant bears the burden to show that a
connection between his possession of a firearm and his narcotics
offense is “clearly improbable.” Harris, 128 F.3d at 852-53.
We conclude after review of the parties’ briefs and
the record that Pedro has not met this burden. The district
court’s application of the two-level enhancement under USSG
§ 2D1.1(b)(1) is supported by statements adduced at the guilty
plea hearing and in the presentence report supporting a finding
that Pedro could foresee his co-defendant’s constructive
possession of three firearms in a residence where the
participants in the conspiracy stored cocaine and marijuana,
large amounts of United States currency, and paraphernalia used
for transporting, storing, and measuring drugs and converting
cocaine into cocaine base. At sentencing, Pedro did not point
to any evidence suggesting that the connection between the
firearms and his narcotics offenses was “clearly improbable,”
and this failing continues on appeal.
Next, Pedro challenges the district court’s
application of the two-level enhancement under USSG § 3B1.4 for
use of a minor. This section of the Guidelines directs a
district court to increase a defendant’s offense level by two
4
levels if the defendant “used or attempted to use a person less
than eighteen years of age to commit the offense.”
USSG § 3B1.4. “‘Used or attempted to use’ includes directing,
commanding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting.” Id., cmt. n.1.
The district court’s application of the two-level enhancement
under USSG § 3B1.4 is supported by information in both the
presentence report and the Government’s evidentiary proffer
establishing that Pedro directed the sixteen-year-old son of a
co-defendant to assist him in producing cocaine base.
See United States v. Murphy, 254 F.3d 511, 513-14 (4th Cir.
2001) (affirming application of enhancement where defendant
directed the minor to “hold [a] gun on” carjacking victim). 1
Next, Pedro argues that the district court erred in
denying his motion for a downward departure or variance from the
Guidelines range based on law enforcement officials’ allegedly
improper use of force during his arrest. However, a district
court’s refusal to depart from the applicable Guidelines range
does not provide a basis for appeal under 18 U.S.C. § 3742
(2006), “unless the court failed to understand its authority to
1
Pedro also argues that it was error for the district court
to apply the § 3B1.4 enhancement based on the late date of the
proffer, but he fails to explain why this is so or why the late
date warrants vacatur of his sentence.
5
do so.” United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008). Pedro does not suggest that the district court
misunderstood its authority to depart or vary downward from the
Guidelines range. Accordingly, this claim is not reviewable.
Finally, Pedro argues that his 180-month sentence is
substantively unreasonable. A within-Guidelines sentence is
presumed on appeal to be substantively reasonable, United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010),
and the presumption is rebutted only by a showing “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted). Pedro
suggests that his sentence is substantively unreasonable because
it is greater than necessary to achieve the goals of sentencing. 2
We reject this argument as it essentially asks this court to
substitute its judgment for that of the district court and defer
to that court’s decision that a 180-month sentence achieved the
purposes of sentencing in Pedro’s case. United States v.
Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (“[D]istrict courts
2
In support of his contention that his sentence is
substantively unreasonable, Pedro also asserts it was error for
the district court to enhance his sentence “concerning the use
of a minor based on hearsay evidence” that the parties did not
have an opportunity to “rebut or explain.” Pedro, however,
fails to explain how such an error would render his sentence
substantively unreasonable.
6
have extremely broad discretion when determining the weight to
be given each of the § 3553(a) factors.”). Pedro fails to rebut
the presumption that his within-Guidelines sentence is
substantively reasonable. Accordingly, we conclude that the
district court did not abuse its discretion in sentencing Pedro.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
7