United States v. Gonzalez ( 2023 )

Case: 22-20209 Document: 00516631327 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20209 FILED
Summary Calendar February 1, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Julio Gonzalez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-454-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Julio Gonzalez pleaded guilty to conspiracy to possess with intent to
distribute 500 grams or more of a mixture or substance containing a
detectable amount of cocaine and possession of a firearm after felony
conviction. He was sentenced within the applicable guidelines range to 100
months of imprisonment. On appeal, he contends that the district court
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-20209
erred in holding him accountable for 3.5 to 5 kilograms of cocaine for
sentencing purposes. See U.S.S.G. § 2D1.1(c). To this end, he argues that
the record demonstrates that he only intended to purchase three kilograms
of cocaine and that any transaction concerning an additional kilogram of
cocaine was not relevant conduct. He also contends that the district court
erred in declining to apply a two-level minor participant adjustment under
U.S.S.G. § 3B1.2(b). We review both issues for clear error. See United States
v. Anchundia-Espinoza, 897 F.3d 629, 632 (5th Cir. 2018); United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
As for the drug quantity finding, according to the factual basis
supporting Gonzalez’s plea and the presentence report, Gonzalez’s
codefendant Jose Lopez-Rodriguez and a confidential source (CS) planned a
meeting for a transaction involving four kilograms of cocaine at an agreed
price of $27,000 per kilogram. Rodriguez-Lopez contacted Gonzalez and
another codefendant, Eric Pena-Briones, about the opportunity. Gonzalez
and Pena-Briones arrived together at the location of the planned transaction
and met with Rodriguez-Lopez and the CS. During the meeting, Gonzalez
opened his backpack and displayed a large amount of money, which agents
later determined to be $89,860; the CS deemed that amount sufficient to
complete the transaction and contacted an undercover agent. The agent
arrived and handed an open box containing four kilograms of sham cocaine
to Pena-Briones, who then placed all four kilograms in Lopez-Rodriguez’s
vehicle. After his arrest, Gonzalez admitted to law enforcement that another
individual provided him with funds to buy three kilograms of cocaine and that
the plan was for Gonzalez to buy three kilograms and for Pena-Briones to buy
one kilogram. Given these facts, it was plausible in light of the record as a
whole for the district court to find that the purchase of the fourth kilogram of
cocaine was reasonably foreseeable to Gonzalez and within the scope of the
jointly undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B); United
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States v. Johnson, 14 F.4th 342, 347, 349-51 (5th Cir. 2021), cert. denied, 142
S. Ct. 928 (2022); Betancourt, 422 F.3d at 246.
In addition, the record refutes Gonzalez’s contention that he played a
peripheral role in the criminal activity. After learning of the opportunity to
purchase kilogram quantities of cocaine, Gonzalez took the initiative to
contact another individual who provided him funds. He then brought cash
to buy at least three of the four kilograms of cocaine involved in the
transaction. Moreover, Gonzalez anticipated receiving $3,000 (or $1,000
per kilogram), and he admitted that, if the transaction was successful, he
planned to buy 10 more kilograms of cocaine. The district court’s finding
that Gonzalez was not a minor participant was plausible in light of the record
as a whole. See Anchundia-Espinoza, 897 F.3d at 634-35; § 3B1.2, comment.
(nn.3(C) & 5).
AFFIRMED.
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