United States v. Jose Gonzalez ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS CORTES GONZALEZ, a/k/a Luis,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:07-cr-00063-GEC-JGW-4)
Submitted: June 14, 2013 Decided: June 25, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Jean Barrett Hudson, Assistant United
States Attorney, Charlottesville, Virginia; Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Cortes Gonzalez (“Gonzalez”) pled guilty to
conspiracy to manufacture, distribute, and possess with intent
to distribute more than five kilograms of cocaine, more than
fifty grams of cocaine base, and more than fifty grams of
methamphetamine, in violation of 21 U.S.C. § 846 (2006)
(count one), and using and carrying a firearm during or in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2006) (count sixty-nine), and was sentenced to 120
months’ imprisonment on count one and a consecutive term of
sixty months’ imprisonment on count sixty-nine. Gonzalez
appealed, and we vacated his conviction and sentence on count
sixty-nine, affirmed his conviction on count one, vacated his
sentence on count one, and twice remanded for resentencing on
that count.
On remand, the district court calculated Gonzalez’
Guidelines range under the U.S. Sentencing Guidelines Manual
(“USSG”) at 120 to 135 months’ imprisonment and sentenced
Gonzalez to 120 months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating there are no meritorious issues for appeal, but
questioning whether the district court abused its discretion in
imposing sentence. Gonzalez has filed two pro se supplemental
briefs raising several issues. We affirm.
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We review the sentence imposed by the district court
for reasonableness under an 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 a sentence. Id. at 51.
A sentence imposed within the properly calculated Guidelines
range is presumed reasonable by this court. United States v.
Mendoza–Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the [18 U.S.C.] § 3553(a)
[(2006)] factors.” United States v. Montes–Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
Counsel and Gonzalez both question whether the
district court erred in applying the two-level enhancement under
USSG § 2D1.1(b)(1) and, if so, whether it properly declined to
apply the “safety valve” provisions of USSG § 5C1.2 and
18 U.S.C. § 3553(e)-(f). 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
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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). The defendant bears the burden to show that a
connection between his possession of a firearm and his narcotics
offense is “clearly improbable.” Id. at 852-53.
We conclude after review of the record that Gonzalez
has not met this burden. Gonzalez admitted at the guilty plea
hearing to participating in a conspiracy to distribute cocaine
and that he possessed a firearm to protect himself from being
robbed of drugs he was possessing and distributing as part of
the conspiracy. At resentencing on remand, Gonzalez did not
point to any evidence to suggest that the connection between the
firearm and his narcotics offense was “clearly improbable,” and
this failing continues on appeal.
Next, because Gonzalez possessed a firearm in
connection with his offense, the district court properly
declined to apply the safety valve reduction. USSG § 5C1.2(a)
(allowing application of the safety valve only if the defendant
“did not use violence or credible threats of violence or possess
a firearm or other dangerous weapon . . . in connection with the
offense”). We thus discern no error in the district court’s
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enhancement of Gonzalez’ offense level under USSG § 2D1.1(b)(1)
and its decision not to apply the safety valve reduction.
Additionally, in accordance with Anders, we have
reviewed the remainder of the record and the remainder of
Gonzalez’ pro se supplemental briefs and have found no
meritorious issues for review. We therefore affirm the district
court’s amended judgment. This court requires that counsel
inform Gonzalez, in writing, of the right to petition the
Supreme Court of the United States for further review.
If Gonzalez requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Gonzalez.
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
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