United States v. Gonzalez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 3, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-21069
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ENRIQUE GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-663-1
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Enrique Gonzalez, proceeding pro se, appeals his
jury-trial conviction for kidnaping, hostage taking, and making
threatening communications in interstate and foreign commerce.
Gonzalez argues that the evidence was insufficient to show that
he was guilty of kidnaping and hostage taking. Because Gonzalez
moved for a judgment of acquittal both at the close of the
Government’s case and at the close of all the evidence, the
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 01-21069
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standard of review for this issue is “whether any reasonable
trier of fact could have found that the evidence established
the essential elements of the crime beyond a reasonable doubt.”
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
The evidence was sufficient to support Gonzalez’s
convictions. The evidence established that Gonzalez deceived and
coaxed the victim into accompanying him to Mexico where he held
the victim against his will and threatened to kill the victim if
the victim’s mother did not do as he requested. See United
States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001); United
States v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir. 1991).
Gonzalez next contends that the district court erred in
overruling his objection to the four-level enhancement he
received for his leadership role in the offense, pursuant to
U.S.S.G. § 3B1.1(a). The district court’s determination that
Gonzalez played a leadership role because he controlled and
utilized family members and various friends to assist him in
facilitating the offense is not clearly erroneous and was
sufficient to justify the enhancement under U.S.S.G. § 3B1.1(a).
See United States v. Ronning, 47 F.3d 710, 711 (5th Cir. 1995).
Gonzalez avers that the district court erred in departing
three levels from a total offense level of 32 to a total offense
level of 35. The district court specifically stated that it was
departing three levels because Gonzalez had made 14 threatening
telephone calls to the victim’s mother and her family over a
No. 01-21069
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six-week period of time. Gonzalez has not shown that the
district court abused its discretion in departing upward.
See United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)
(en banc); see also U.S.S.G. § 5K2.0, p.s.
Gonzalez avers next that the district court abused its
discretion in departing upward based on its finding that his
criminal history category underrepresented the seriousness of
his past criminal conduct and that the district court did not
consider the intermediate criminal history category of II in
departing from a criminal history category of I to a category
of III. The district court did not abuse its discretion. See
United States v. Cade, 279 F.3d 265, 270 (5th Cir. 2002). The
district court did consider the intermediate criminal history
category of II and explained that the upward departure was based
on Gonzalez’s long history of abusive and violent relationships
with women and his own children. See United States v. Lambert,
984 F.2d 658, 662-63 (5th Cir. 1993) (en banc).
Gonzalez argues next that the district court erred in
increasing his base offense level by two, pursuant to U.S.S.G.
§ 2A4.1(b)(3). He contends that the victim’s testimony was
insufficient to support the enhancement. The presentence report
reflected that Gonzalez poured gasoline on the victim and
threatened to set him on fire. By adopting the information of
the presentence report, the district court, in effect, made a
credibility determination that the information contained in the
No. 01-21069
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presentence report was credible. Such credibility determinations
are within the province of the trier-of-fact. See United States
v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998).
To the extent that Gonzalez seeks to raise an ineffective-
assistance claim, such a claim is not reviewable on direct appeal
because the record is not sufficiently developed on the merits
of the claim. See United States v. Bounds, 943 F.2d 541, 544
(5th Cir. 1991). Given the foregoing, the judgment of the
district court is AFFIRMED.
Gonzalez’s motion to file a reply brief in excess of the
page limits is GRANTED. His motion to supplement the record on
appeal is DENIED.
AFFIRMED; MOTION TO FILE A REPLY BRIEF IN EXCESS OF THE PAGE
LIMITS GRANTED; MOTION TO SUPPLEMENT THE RECORD DENIED.