United States v. Gonzalez ( 2022 )

Case: 21-40580 Document: 00516329391 Page: 1 Date Filed: 05/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 23, 2022
No. 21-40580
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jorge Arturo Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1980-2
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jorge Arturo Gonzalez pleaded guilty of conspiracy to possess with
intent to distribute 500 grams or more of cocaine, and he was sentenced
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-40580
within the guidelines range to a 235-month term of imprisonment and to a
four-year period of supervised release. He challenges his sentence only.
A district court’s interpretation and application of the Sentencing
Guidelines is subject to de novo review, while factual findings are reviewed
for clear error. United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A
factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” Id. We will not find clear error unless a “review of the
record results in a definite and firm conviction that a mistake has been
committed.” Id. (internal quotation marks and citation omitted).
The facts are that Gonzalez’s co-conspirator was arrested when she
attempted to smuggle cocaine across the border with Mexico; that the co-
conspirator agreed to cooperate and participated in a controlled delivery to
Gonzalez’s apartment; and that the controlled delivery led to Gonzalez’s
arrest and conviction.
Threat Enhancement
Gonzalez contends that the district court erred in enhancing the
sentence under U.S.S.G. § 2D1.1(b)(2) because Gonzalez uttered a threat
that was overheard by his co-conspirator related to her cooperation with the
Government. The argument is (1) that the fact that the threat was made was
not proven by reliable evidence and was uncorroborated; (2) that the threat
was not credible because Gonzalez and the co-conspirator were detained; and
(3) that the enhancement does not apply because the threat was not made
during the drug trafficking offense.
Subsequently, there was a drive-by shooting at the co-conspirator’s
residence in Mexico, where her parents and child lived. A bullet was left on
which the co-conspirator’s name had been written, and the family dog was
killed.
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On this record, the district court’s finding that Gonzalez had
threatened the co-conspirator was plausible and therefore was not clearly
erroneous. See Zuniga, 720 F.3d at 590. Gonzalez’s contention that the
threat must be made during the offense is without merit. See United States v.
Barrera, 697 F. App’x 373, 373-74 (5th Cir. 2017); see also United States v.
Chavez-Luna, 779 F. App’x 242, 243 (5th Cir. 2019) (finding no plain error
in imposing enhancement because threat was part of relevant conduct);
United States v. Teague, 772 F. App’x 149, 150 (5th Cir. 2019) (finding no
clear error where threat was part of relevant conduct); United States v. Torres,
694 F. App’x 937, 939, 942 (5th Cir. 2017) (affirming enhancement,
reasoning that coconspirator’s threats were relevant conduct). 1 Gonzalez’s
threat and the drive-by shooting both were relevant conduct and provide a
basis for imposition of the threat enhancement. See U.S.S.G.
§ 1B1.3(a)(1)(A) & (B).
Obstruction of Justice Enhancement
Next, Gonzalez contends that the district court erred in enhancing the
sentence under U.S.S.G. § 3C1.1 for obstruction of justice related to the
threat made to the co-conspirator. Gonzalez asserts that there was no
showing that the threat materially hindered the investigation. The district
court determined implicitly that the purpose of the threat was to dissuade the
co-conspirator from cooperating. Gonzalez argues obliquely that imposition
of the threat enhancement and the enhancement for obstruction of justice
involve improper double counting. Sections 2D1.1(b)(2) and 3C1.1 do not
expressly prohibit dual application. See United States v. Luna, 165 F.3d 316,
323 (5th Cir. 1999) (holding that double counting is permitted unless
1
Unpublished opinions issued in or after 1996 “are not precedent” except in
limited circumstances, 5TH CIR. R. 47.5.4, but they “may be persuasive authority,”
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
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No. 21-40580
expressly prohibited). The district court did not clearly err in imposing the
obstruction-of-justice enhancement. See United States v. Guidry, 960 F.3d
676, 681 (5th Cir.), cert. denied, 141 S. Ct. 602 (2020).
Acceptance of Responsibility
The district court erred, Gonzalez contends, in refusing to reduce the
offense level for acceptance of responsibility because Gonzalez had
obstructed justice. Gonzalez asserts that he pleaded guilty and provided a
statement accepting responsibility. Gonzalez has not shown that the district
court’s ruling was “without foundation.” United States v. Leontaritis, 977
F.3d 447, 453 (5th Cir. 2020), cert. denied, 142 S. Ct. 335 (2021).
Calculation of Base Offense Level
Gonzalez contends that the district court erred in determining his base
offense level. The base offense level was determined on the basis of the 2.97
kilograms (net weight) of cocaine involved in the instant offense, the co-
conspirator’s statement regarding previous deliveries to Gonzalez’s
apartment, and five additional kilograms of cocaine observed on the video
evidence retrieved from Gonzalez’s cell phones. The district court’s drug
quantity finding is plausible in light of the record as a whole and, therefore,
was not clearly erroneous. See United States v. Lucio, 985 F.3d 482, 485 (5th
Cir.), cert. denied, 142 S. Ct. 177 (2021).
Weapons Enhancement
The district court erred, Gonzalez contends, in enhancing the
sentence under U.S.S.G. § 2D1.1(b)(1) because a dangerous weapon was
possessed. The record shows that Gonzalez kept firearms inside his
residence, which was used for drug distribution, and in the proximity of drug
paraphernalia. See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005);
United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997). The district court
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No. 21-40580
did not clearly err in imposing the enhancement. See United States v. Vital,
68 F.3d 114, 119 (5th Cir. 1995).
Mitigating Role Adjustment
Gonzalez next asserts that he should have received a mitigating role
adjustment under U.S.S.G. § 3B1.2. Gonzalez had the burden of showing
that the adjustment was appropriate. See United States v. Castro, 843 F.3d
608, 613 (5th Cir. 2016). Gonzalez asserts that his role in the offense was
merely to receive and store narcotics. Gonzalez did not debrief, however,
and he has not met his burden of showing that the adjustment was
appropriate. See id. The district court thoroughly explained its ruling, and it
did not clearly err in refusing to grant a role reduction. See United States v.
Escobar, 866 F.3d 333, 335-36 (5th Cir. 2017).
Maintenance of Premises
Finally, Gonzalez contends that the district court erred in enhancing
the sentence under U.S.S.G. § 2D1.1(b)(12) for maintenance of premises.
Our review is for clear error. See United States v. Galicia, 983 F.3d 842, 843
(5th Cir. 2020). The evidence showed that Gonzalez possessed substantial
quantities of drugs in his apartment on multiple occasions over an extended
period; that he had received multiple deliveries of drugs there; and that drug
paraphernalia, weapons and ammunition, and drug-related financial records
were found there. The district court’s finding was not clearly erroneous. See
Galicia, 983 F.3d at 844-45.
The judgment is AFFIRMED.
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