United States v. Goncalves , 613 F.3d 601 ( 2010 )


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  •                 REVISED AUGUST 25, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 09-10713                        August 3, 2010
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                 Clerk
    Plaintiff - Appellee
    v.
    JEREMY ALEXANDER GONCALVES,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
    PER CURIAM:
    Defendant Jeremy Alexander Goncalves appeals his sentence of thirty-
    three months’ incarceration for his convictions of passing counterfeit notes and
    for using a falsely altered military discharge certificate. Goncalves argues that
    the district court miscalculated his sentence under the United States Sentencing
    Commission Guidelines Manual (the “Guidelines” or “U.S.S.G.”).                 For the
    following reasons, we AFFIRM the district court’s sentence.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    No. 09-10713
    In August 2007, Goncalves received a bad-conduct discharge from the
    United States Army. After his discharge, Goncalves returned to his hometown
    of Ludlow, Massachusetts, where he applied for work with Bell Helicopter. Bell
    is located in Hurst, Texas. As part of his application, Goncalves emailed Bell an
    altered copy of his certificate of discharge from the Army. In the certificate of
    discharge, Goncalves indicated that he received an honorable discharge from the
    Army, served in special forces for over two years, and last held the rank of
    captain.     All of these assertions were false.   Goncalves also fraudulently
    represented to Bell in accompanying documents that he had graduated from the
    University of Massachusetts and was currently employed with Northeast
    Utilities.
    Based on Goncalves’s representations, Bell hired Goncalves, paying for
    him and his family to move to Texas. Goncalves began work for Bell in May
    2008. However, as part of its own hiring investigation, Bell subsequently
    learned that Goncalves had fraudulently altered his certificate of discharge from
    the Army and lied about his educational and work background. Bell terminated
    Goncalves in June 2008.
    In August 2008, Goncalves attempted to purchase a dirt bike through the
    Internet from Wilfredo Mendieta for $2,100. When Goncalves and Mendieta met
    for the purchase, Goncalves handed Mendieta what appeared to be twenty-one
    $100 bills. However, Mendieta later told authorities that he thought that the
    bills “felt funny,” so he had them inspected with a counterfeit detection pen.
    Some of the bills were revealed to be counterfeit. Mendieta turned the bills over
    to police, where the bills were conclusively identified as counterfeit federal
    reserve notes, many bearing the same serial number.
    Texas state police officers subsequently identified Goncalves as the
    purchaser of the dirt bike and arrested him.       After his arrest, Goncalves
    admitted to the officers that he had used counterfeit notes to purchase the dirt
    2
    No. 09-10713
    bike from Mendieta. Goncalves further stated that he had entered into an
    arrangement with a Nigerian man in France whom Goncalves had met on the
    Internet.   According to Goncalves, the Nigerian man had agreed to send
    Goncalves counterfeit notes that he would first use to make purchases of items,
    and that he would then sell at a profit. The scheme then involved Goncalves
    sending the Nigerian man thirty percent of any profits earned from the scheme.
    Goncalves later stated to federal officials that he had received a package in the
    mail containing the fraudulent notes that he used to purchase the dirt bike.
    Federal officials performed a note history on the counterfeit bills used in
    Goncalves’s fraudulent purchase of the dirt bike. The note history revealed that
    someone had used an additional twenty $100 counterfeit bills with the same
    serial numbers to purchase a home-theater system from Circuit City.             A
    subsequent investigation revealed that Goncalves had used the additional
    fraudulent bills to purchase the home-theater system.
    Goncalves pleaded guilty in federal court to one count of Uttering
    Counterfeit Obligations of the United States, in violation of 
    18 U.S.C. § 472
    , and
    one count of Using Falsely Altered Military Discharge Certificate, in violation
    of 
    18 U.S.C. §§ 498
     & 2. Prior to sentencing, a United States Probation Officer
    submitted a Presentence Report (PSR), which calculated that Goncalves’s
    Guidelines range of imprisonment was twenty-seven to thirty-three months.
    Goncalves objected to the recommended Guidelines sentence calculation
    in the PSR. First, Goncalves argued that his offenses should have been grouped
    pursuant to U.S.S.G. § 3D1.2(d), which allows for grouping of offenses that
    “involve substantially the same harm.” Such a grouping would have resulted in
    a two-level reduction in his Guidelines sentence. Goncalves also argued that the
    PSR improperly applied § 2B5.1(b)(5), which applies a two-level enhancement
    if any conduct relevant to the offense occurred outside the United States. The
    3
    No. 09-10713
    district court overruled both objections and sentenced Goncalves to thirty-three
    months’ incarceration, which was at the top of the calculated Guidelines range.
    Goncalves now appeals his sentence and reiterates the objections he made
    at sentencing.
    II. STANDARD OF REVIEW
    We review a district court’s sentencing decision for abuse of discretion. See
    United States v. Harris, 
    597 F.3d 242
    , 250 (5th Cir. 2010).          For properly
    preserved claims, we review the court’s application and interpretation of the
    Guidelines de novo. See United States v. Rodriguez, 
    602 F.3d 346
    , 362 (5th Cir.
    2010). A district court’s factual findings, which we review for clear error, must
    be supported by a preponderance of the evidence. See 
    id.
     “‘A factual finding is
    not clearly erroneous as long as it is plausible in light of the record read as a
    whole.’” United States v. McMillan, 
    600 F.3d 434
    , 457–58 (5th Cir. 2010)
    (quoting United States v. Krenning, 
    93 F.3d 1257
    , 1269 (5th Cir. 1996)).
    III. DISCUSSION
    A. No Error for Not Grouping the Offenses under § 3D1.2(d)
    Goncalves first argues that the district court erred by failing to group his
    two convictions under U.S.S.G. § 3D1.2. Specifically, Goncalves argues that
    because § 3D1.2(d) lists both of the crimes for which he was convicted in a list
    of offenses “to be grouped,” the court erred in finding that the Guideline did not
    apply.
    Section 3D1.2 states that “[a]ll counts involving substantially the same
    harm shall be grouped together into a single Group.” The section then sets forth
    four different categories of offenses that “involve substantially the same harm
    within the meaning of this rule.” The only such category at issue here is that
    contained in subsection (d), which applies in the following circumstance:
    When the offense level is determined largely on the basis of the total
    amount of harm or loss, the quantity of a substance involved, or
    some other measure of aggregate harm, or if the offense behavior is
    4
    No. 09-10713
    ongoing or continuous in nature and the offense guideline is written
    to cover such behavior.
    Id.1 Subsection (d) further sets forth three categories of Guidelines that cover
    certain offenses and how those offenses are treated under § 3D1.2(d). The first
    category lists Guidelines covering offenses that “are to be grouped” under the
    subsection. Id. The second category lists Guidelines covering offenses that are
    specifically excluded from grouping under the subsection. Finally, the third
    category states that multiple counts of unlisted offenses must be determined on
    a case-by-case basis. Id.; see also United States v. Salter, 
    241 F.3d 392
    , 394 (5th
    Cir. 2001).
    The Guidelines covering Goncalves’s two offenses are found on the same
    line of the first category of § 3D1.2(d). Because § 3D1.2(d) states that offenses
    in this list “are to be grouped” under the subsection, Goncalves argues that a per
    se rule exists regarding their grouping. However, we have held that “grouping
    is not mandatory or automatic simply because a defendant is charged with an
    1
    In relevant part, the Guideline provides as follows:
    All counts involving substantially the same harm shall be grouped together into
    a single Group. Counts involve substantially the same harm within the
    meaning of this rule:
    (a) When counts involve the same victim and the same act or
    transaction.
    (b) When counts involve the same victim and two or more acts or
    transactions connected by a common criminal objective or constituting
    part of a common scheme or plan.
    (c) When one of the counts embodies conduct that is treated as a specific
    offense characteristic in, or other adjustment to, the guideline applicable
    to another of the counts.
    (d) When the offense level is determined largely on the basis of the total
    amount of harm or loss, the quantity of a substance involved, or some
    other measure of aggregate harm, or if the offense behavior is ongoing
    or continuous in nature and the offense guideline is written to cover such
    behavior.
    U.S.S.G. § 3D1.2.
    5
    No. 09-10713
    offense that falls under a guideline listed in § 3D1.2(d).” United States v.
    Lopez–Urbina, 
    434 F.3d 750
    , 763 (5th Cir. 2005) (citing United States v. Solis,
    
    299 F.3d 420
    , 459–60 (5th Cir. 2002)). Rather, an offense covered by a Guideline
    in the first category is only “susceptible to grouping under that subsection.” 
    Id.
    No per se rule exists.2
    When deciding what criteria to consider when determining whether
    grouping is appropriate under the first category of offenses in § 3D1.2(d), we look
    to the Guideline’s Commentary. See United States v. Patterson, 
    962 F.2d 409
    ,
    416 (5th Cir. 1992). Application Note 6 of the Commentary states that “[c]ounts
    involving offenses to which different offense guidelines apply are grouped
    together under subsection (d) if the offenses are of the same general type and
    otherwise meet the criteria for grouping under this subsection.” U.S.S.G.
    § 3D1.2 cmt. n.6. The Application Note further states that “[t]he ‘same general
    type’ of offense is to be construed broadly.” Id.
    Goncalves argues that his offenses are of the “same general type” because
    they are both acts of fraud and involve economic loss.                       However, these
    similarities alone are insufficient. See, e.g., United States v. Brisson, 
    448 F.3d 989
    , 992 (7th Cir. 2006) (convictions for bank fraud and fraud against the United
    States were not “of the same general type” simply because they were “economic
    offenses arising out of the failed ownership of the hotel”). Furthermore, such
    similarities are all that exist between the two offenses. One of the offenses for
    which Goncalves was convicted took place in August 2008 and involved the
    purchase of private property with counterfeit bills. The other offense took place
    2
    Goncalves switches course in his reply brief and argues that his position is not for a
    per se rule under § 3D1.2(d), but that the district court erred by not considering § 3D1.2 at all.
    However, this new position is belied by the language in his original appellate brief arguing that
    § 3D1.2(d) sets forth a per se rule. It is also belied by the paragraph of the PSR to which
    Goncalves specifically objected before the district court, which discusses § 3D1.2 in detail and
    concludes that grouping is inappropriate.
    6
    No. 09-10713
    in May 2007 and involved the alteration of a military certificate of discharge in
    order to deceive a company into hiring him. The crimes involve different
    schemes, different objectives, and different victims, and they took place at
    different times. They are thus not of “the same general type.” See United States
    v. Ballard, 
    919 F.2d 255
    , 257 (5th Cir. 1990) (finding no error when the district
    court did not group two crimes falling under the same enumerated Guideline in
    § 3D1.2(d) when the crime involved two separate victims, two separate vehicles,
    and two separate events); Brisson, 
    448 F.3d at 992
     (offenses not of the same
    general type under § 3D1.2(d) when they involved, inter alia, different victims).
    Finally, even if the two offenses were “of the same general type,” a review
    of Goncalves’s PSR demonstrates that the offense level for either crime was not
    “determined largely on the basis of the total amount of harm or loss.” U.S.S.G.
    § 3D1.2(d). The PSR recommended only a one-level increase for the amount in
    question for Goncalves’s counterfeiting conviction, and the amount of harm or
    loss was not at issue for his material alteration offense except to calculate
    restitution. In addition, Goncalves has not shown that his offense level has been
    calculated pursuant to Guidelines written to cover “behavior [that] is ongoing or
    continuous in nature.” Id. Goncalves’s alteration of a military document was a
    discrete event, as was the purchase of a home-theater system with the use of
    counterfeit bills. Thus, the offenses do not “otherwise meet the criteria for
    grouping under” § 3D1.2(d).
    Accordingly, we find no error in the district court’s decision not to group
    the offenses for sentencing purposes.
    B. No Error in Applying § 2B5.1(b)(5)
    Goncalves next argues that the district court erred by applying the
    sentence enhancement in U.S.S.G. § 2B5.1(b)(5) to his conviction for passing
    7
    No. 09-10713
    counterfeit notes, in violation of 
    18 U.S.C. § 472.3
     This subsection of the
    Guidelines allows for a two-level increase in a sentence “[i]f any part of the
    offense was committed outside the United States.” U.S.S.G. § 2B5.1(b)(5).
    Goncalves argues that the district court erred in two ways when applying
    § 2B5.1(b)(5). First, he contends that the district court erred as a matter of law
    by applying § 2B5.1(b)(5) to his conviction under 
    18 U.S.C. § 472
     because the
    Guideline applies only to convictions under 
    18 U.S.C. § 470
    . Alternatively, he
    argues that there is insufficient evidence from which to find that part of the
    relevant conduct took place outside the United States. We find no merit in
    either contention.
    1. No Legal Error
    Goncalves first argues that the district court erred as a matter of law by
    applying § 2B5.1(b)(5) to his conviction under 
    18 U.S.C. § 472
    . This is because,
    Goncalves asserts, the enhancement applies only to international counterfeiting
    offenses under 
    18 U.S.C. § 470.4
                     Specifically, Goncalves points to the
    3
    That statute provides:
    Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts
    to pass, utter, publish, or sell, or with like intent brings into the United States
    or keeps in possession or conceals any falsely made, forged, counterfeited, or
    altered obligation or other security of the United States, shall be fined under
    this title or imprisoned not more than 20 years, or both.
    
    18 U.S.C. § 472
    .
    4
    This statute provides:
    A person who, outside the United States, engages in the act of--
    (1) making, dealing, or possessing any counterfeit obligation or other
    security of the United States; or
    (2) making, dealing, or possessing any plate, stone, analog, digital, or
    electronic image, or other thing, or any part thereof, used to counterfeit
    such obligation or security,
    if such act would constitute a violation of section 471, 473, or 474 if committed
    within the United States, shall be punished as is provided for the like offense
    within the United States.
    8
    No. 09-10713
    Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
    104-132, § 807(h), 
    110 Stat. 1214
    , 1310, which states that “the Commission shall
    amend the sentencing guidelines prescribed by the Commission to provide an
    appropriate enhancement of the punishment for a defendant convicted under
    section 470 of title 18 of such Code.” Because AEDPA § 807(h) refers only to 
    18 U.S.C. § 470
     and not to 
    18 U.S.C. § 472
    , Goncalves argues that any application
    of § 2B5.1(b)(5) goes beyond Congress’s intent.
    Under 
    28 U.S.C. § 994
    (a), the Sentencing Commission is vested with the
    authority to promulgate Guidelines that are “consistent with all pertinent
    provisions of any Federal statute.” Accordingly, “Congress has delegated to the
    Commission ‘significant discretion in formulating guidelines’ for sentencing
    convicted federal offenders.” United States v. LaBonte, 
    520 U.S. 751
    , 757 (1997)
    (quoting Mistretta v. United States, 
    488 U.S. 361
    , 377 (1989)). Based on this
    discretion and authority, “the Sentencing Commission has the power and the
    duty not only to interpret specific provisions of federal statutes regulating
    criminal punishment . . . but also to establish . . . standards designed to promote
    uniform and rational federal sentencing.” United States v. Lauer, 
    148 F.3d 766
    ,
    769 (7th Cir. 1998) (citing, e.g., Mistretta, 
    488 U.S. at
    367–70). Accordingly, we
    have held that the Commission may enact Guidelines that are not inconsistent
    with federal law but which are broader than a congressional directive when the
    Commission evinces a clear intent to do so. See United States v. Dale, 
    374 F.3d 321
    , 330 (5th Cir. 2004), rev’d on other grounds, 
    543 U.S. 1113
     (2005). Goncalves
    has failed to show how applying § 2B5.1(b)(5) to 
    18 U.S.C. § 472
     would be
    inconsistent with federal law or an abuse of the Commission’s discretion. Thus
    we do not find the Commission exceeded its authority in doing so.
    
    18 U.S.C. § 470
    .
    9
    No. 09-10713
    Nevertheless, Goncalves further argues that our holding in Dale otherwise
    forecloses the application of § 2B5.1(b)(5) to 
    18 U.S.C. § 472
    . In Dale, we held
    that the Sentencing Commission had not exceeded its authority by including
    non-federally insured entities in a Guideline when the statute authorizing the
    Guideline’s promulgation mentioned only federally insured financial institutions.
    See Dale, 
    374 F.3d at 330
    . In addition, because the Commission stated in the
    Background commentary of the Guideline that it was implementing “in broader
    form” the instruction to the Commission in the relevant statute, the Commission
    had “indicate[d] that [it was] exercising its authority to define an offense beyond
    a specific directive of Congress.” 
    Id.
     (citing United States v. Soileau, 
    309 F.3d 877
    , 881 (5th Cir. 2002)).
    Goncalves argues that the Commission never demonstrated its intent to
    implement § 807(h) of AEDPA “in broader form” in the Background commentary
    to § 2B5.1(b)(5). Specifically, Goncalves points to the “Reason for Amendment”
    section of the Guidelines, which states that the amendment adding § 2B5.1(b)(5)
    to the Guidelines was to “address[] section 807(h) of [AEDPA]” and “to provide
    an appropriate enhancement for a defendant convicted of an international
    counterfeiting offense under 
    18 U.S.C. § 470
    .” U.S.S.G. App. C. Amendment
    554. Because the “Reason for Amendment” does not specifically identify 
    18 U.S.C. § 472
    , Goncalves argues that § 2B5.1(b)(5) should not apply to it.
    We find Goncalves’s arguments unconvincing. Both the plain language of
    the Guideline and its commentary demonstrate that the Commission clearly
    intended to include 
    18 U.S.C. § 472
     as an offense subject to § 2B5.1(b)(5). First,
    the Guideline is titled “Offenses Involving Counterfeit Bearer Obligations of the
    United States,” which includes 
    18 U.S.C. § 472
     by its plain language. See
    § 2B5.1.   Moreover, the § 2B5.1 commentary specifically states that the
    Guideline applies to 
    18 U.S.C. § 472
    . See U.S.S.G. § 2B5.1 cmt. It is well settled
    that a Guideline’s commentary “is authoritative unless it violates the
    10
    No. 09-10713
    Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
    reading of, that guideline.” Stinson v. United States, 
    508 U.S. 36
    , 38 (1993).
    Finally, while the Commission does not specifically state that it intends
    to implement AEDPA “in broader form” in its “Reason for Amendment,” the
    absence of such language is not dispositive in determining how a Guideline
    should apply.     The Seventh Circuit has noted that the circumstances
    surrounding the passage of § 2B5.1(b)(5) “suggest that the Commission knew
    that its enhancement applied to more sections of the United States Code than
    the section specifically noted by Congress.” United States v. Hernandez, 
    325 F.3d 811
    , 815 (7th Cir. 2003).      The court noted that in the “Reason for
    Amendment” in the Guideline’s Background commentary, the Commission
    stated that it was “addressing” Congress’s directive in § 807(h) of AEDPA when
    it promulgated § 2B5.1(b)(5), which evinced a broader legislative intent than
    simply “implement[ing]” the directive. See id. at 814–15 (quoting U.S.S.G. App.
    C, Amendment 554). Together with the plain language of the Guideline and its
    authoritative commentary, the court concluded that the Commission clearly
    intended § 2B5.1(b)(5) to apply to 
    18 U.S.C. § 472
    . See 
    id.
    We find the Seventh Circuit’s reasoning persuasive. Accordingly, we hold
    the district court committed no legal error in applying § 2B5.1(b)(5) to
    Goncalves’s conviction under 
    18 U.S.C. § 472
    .
    2. No Factual Error
    Goncalves next argues that there was insufficient evidence for the district
    court to find that part of the relevant conduct underlying his conviction took
    place outside of the United States, thus making § 2B5.1(b)(5) inapplicable.
    Goncalves acknowledges that it is his own admission that forms the basis for the
    district court’s finding of fact on this issue. However, Goncalves argues that his
    repeated lies and misrepresentations to state and federal officials make him an
    unreliable witness, and he thus lacks sufficient credibility to be taken seriously.
    11
    No. 09-10713
    We find that it is Goncalves’s instant argument that cannot be taken
    seriously. “Credibility determinations are peculiarly within the province of the
    trier-of-fact . . . .” United States v. Sarasti, 
    869 F.2d 805
    , 807 (5th Cir. 1989).
    Consequently, we will not disturb a district court’s credibility determination
    made at sentencing. See 
    id.
     According to his PSR, Goncalves admitted to the
    police that he had conspired with someone outside the United States to use
    counterfeit bills to purchase items and then sell them at a profit. Goncalves has
    never denied that he made this admission, nor did he present any evidence
    showing where else the money may have come from. Moreover, the fact that the
    district court found other statements by Goncalves to be untrue does not
    foreclose a determination that in at least one situation—particularly where it
    appears to be against his own interest to do so—Goncalves told the truth. A
    defendant’s own admission may be competent evidence when making a finding
    of fact, even when that defendant is also convicted of fraud. See, e.g., United
    States v. Cothran, 
    302 F.3d 279
    , 287–88 (5th Cir. 2002); see also United States
    v. Puckett, 
    505 F.3d 377
    , 387 (5th Cir. 2007).
    Given Goncalves’s own admission that part of his crime took place outside
    the United States, we do not find the district court’s finding of fact on this issue
    to be clearly erroneous.
    IV. CONCLUSION
    The district court’s judgment and sentence are, in all respects,
    AFFIRMED.
    12
    

Document Info

Docket Number: 09-10713

Citation Numbers: 613 F.3d 601, 2010 WL 3002065

Filed Date: 8/25/2010

Precedential Status: Precedential

Modified Date: 1/9/2019

Authorities (18)

United States v. McMillan , 600 F.3d 434 ( 2010 )

United States v. Rodriguez , 602 F. Supp. 3d 346 ( 2010 )

United States of America, Cross-Appellant v. Bruce ... , 962 F.2d 409 ( 1992 )

United States v. Galo Eduardo Sarasti , 869 F.2d 805 ( 1989 )

United States v. Cothran , 302 F.3d 279 ( 2002 )

United States v. Harris , 597 F.3d 242 ( 2010 )

united-states-v-jose-cleotide-solis-also-known-as-little-cocho-ecliserio , 299 F.3d 420 ( 2002 )

United States v. Dale , 374 F.3d 321 ( 2004 )

United States v. Salter , 241 F.3d 392 ( 2001 )

United States v. Soileau , 309 F.3d 877 ( 2002 )

United States v. Michael J. Brisson , 448 F.3d 989 ( 2006 )

United States of America, Cross-Appellee v. John D. Lauer , 148 F.3d 766 ( 1998 )

United States v. Curtis Ballard , 919 F.2d 255 ( 1990 )

United States v. Roberto Lopez-Urbina Raul Badillo-Rangel , 434 F.3d 750 ( 2005 )

United States v. Carmen Hernandez , 325 F.3d 811 ( 2003 )

United States v. Puckett , 505 F.3d 377 ( 2007 )

United States v. Krenning , 93 F.3d 1257 ( 1996 )

Stinson v. United States , 113 S. Ct. 1913 ( 1993 )

View All Authorities »