United States v. Gonzalez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 14, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 05-40409
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANOLO GONZALEZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Criminal Action No. L-95-042
_________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
I
On November 11, 1995, Manolo Gonzalez, then eighteen years
old, was arrested by the U.S. Border Patrol. On November 22,
1995, Gonzalez was indicted for violating 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846, 952(a), 960(b)(2), 963, and 18 U.S.C. § 2.
Gonzalez was released on bond and failed to appear for pre-trial
proceeding, and as a result was charged with failure to appear.
*
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this opinion should not be published and is not precedent except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.
1
A warrant was issued for his arrest. Nearly ten years later,
Gonzalez voluntarily surrendered.
The Government agreed to dismiss the underlying controlled
substance charges and prosecuted Gonzalez on the failure to
appear charge only, to which Gonzalez pled guilty. The PSR
recommended a nine-level increase in Gonzalez’s base offense
level pursuant to United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”) § 2J1.6(b)(2)(A), due to the fact that the
underlying offense was punishable by fifteen or more years of
imprisonment. The original PSR calculated a total offense level
of 15 and found Gonzalez had a criminal history category of I.
Gonzalez later was given a two-level reduction for acceptance of
responsibility, which resulted in a Guidelines range of twelve to
eighteen months of imprisonment and two to three years of
supervised release.
The district court upwardly departed from the Guidelines
range. It noted that the other four co-defendants in the
underlying controlled substance offense received sentences
ranging from 52 to 78 months of imprisonment. It found that if
Gonzalez had been convicted on the underlying offense, he would
have faced 46 to 57 months of imprisonment even with the downward
adjustments for safety valve and acceptance of responsibility.
The district court stated that it was willing to consider a
sentence below what Gonzales would have received for the
underlying offense, but not the short six-month sentence
2
requested by defense counsel. Defense counsel pointed out that
there was no evidence that Gonzalez would have been found guilty
of the charges. The court replied:
Okay. But then he should have stayed and found out. You
know, because the bonus you got is that they just dropped
the drug case and probably the witnesses, who knows, the
agents may have all retired, been transferred and they may
have had to throw away all the evidence.
You know, ten years is a long time. So, you know, you got a
tremendous windfall for running, and that’s a bad signal to
send out to the world.
Just run to Mexico and if you wait enough time you will get
six months in a major drug deal. That’s hard for me to
accept.
The district court stated that the circumstances would have been
different had the controlled substance charges not been dropped.
It imposed 36 months of imprisonment, three years of supervised
release, and 100 hours of community service, stating that this
was a “reasonable and fair disposition.” The court noted that
this sentence was lower than any sentence Gonzalez could have
received had he stayed to face the underlying charges.
In its written statement of reasons, the district court
cited U.S.S.G. § 5K2.21 as the basis for its departure from the
Guidelines range recommended by the PSR. See § 3553(c)(2)
(requiring the court’s reasons for departure to be stated with
specificity in the written judgment.) Pursuant to § 5K2.21, a
court may take into account the conduct involved in an underlying
charge that is dismissed as part of a plea agreement, when the
conduct was not used in determining the applicable Guidelines
3
range. The district court also noted as an additional reason for
departure, that “[t]he defendant absconded from a serious drug
offense in which co-defendants received no less than 52 months
custody.” Finally, the court stated that the Guidelines
adequately addressed the § 3553(a) sentencing factors.
Gonzalez timely appealed.
II
Gonzalez contends that his sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543
U.S. 220 (2005), because the district court increased his
punishment based on the underlying drug charge, the facts of
which were not found by a jury beyond a reasonable doubt and to
which he did not admit. He also argues that the PSR already took
account of the underlying charge in the determination of the
applicable Guidelines range, and that the district court was
precluded from upwardly departing from the Guidelines range based
on the underlying charge.1 The Government asserts that, because
the district court imposed sentence under advisory Guidelines and
exercised its discretion to depart upwardly, there was no Booker
violation. It also argues that the district court departed from
1
In summarizing his argument, Gonzalez identifies another
issue: whether the district court violated his rights to trial,
confrontation, and due process with respect to the underlying
drug charges. Gonzalez has waived this argument by not
supporting it with any authority or including it in the body of
his brief. See United States v. Thames, 214 F.3d 608, 611 n.3
(5th Cir. 2000) (holding that the appellant waived an argument
listed only in his summary of the argument).
4
the Guidelines based on § 3553(a)(2).
Gonzalez was sentenced shortly after Booker was issued.
Although he objected before the district court that he had not
been convicted of the controlled substance charge, he did not
complain that he was being punished for conduct not found beyond
a reasonable doubt or in violation of his right to a jury trial;
nor did he complain that the PSR had already taken into account
the underlying charge when determining the applicable Guidelines
range. Because he did not adequately preserve his appellate
arguments before the district court, plain error review applies.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). To establish plain error, Gonzalez
must show: (1) error; (2) that is plain; (3) that affects his
substantial rights; and (4) that affects the fairness, integrity,
or public reputation of judicial proceedings. Id.Gonzalez’s double-counting argument fails: the increase in
offense level pursuant to § 2J1.6 does not preclude the district
court’s upward departure under § 5K2.21, because the former
punishes defendants like Gonzalez from failing to appear at trial
while the latter allows upward departures based on the conduct
underlying the dismissed charge. See U.S.S.G. § 2J1.6 cmt.
background (2005); United States v. Harper, 932 F.2d 1073, 1077
(5th Cir. 1991). Yet, the district court’s citation to § 5K2.21
in its written statement of reasons is problematic because the
record does not support a finding that Gonzalez engaged in any
5
specific conduct alleged in the dismissed charges. Upward
departures based on § 5K2.21 require a finding that the defendant
engaged in the conduct underlying the dismissed charges. See
United States v. Bailey, 169 Fed. App’x 815, 825 (5th Cir. 2006)
(holding that uncharged conduct described in PSR and which was
discussed by the court at sentencing was sufficient to support an
upward departure under § 5K2.21). The PSR does not describe the
facts of the underlying offense, but merely states that Gonzalez
was arrested by border patrol agents “as part of a drug smuggling
organization.” At sentencing, defense counsel stated that he had
spoken with the prosecutor for the underlying charges and was
told that Gonzalez “was a passenger in a vehicle that left the
house.” The district court never found that Gonzalez had engaged
in the conduct that formed the basis of the underlying drug
charges, and the court did not sentence Gonzalez for the
underlying drug charges. Rather, the district court used the
sentence Gonzalez potentially could have received had he been
convicted of those charges in determining the sentence to impose
for his failure to appear for trial on the underlying charges.
However, the record does support the upward departure based
on aggravating facts, which warrant an upward departure under 18
U.S.C. § 3553 and U.S.S.G. § 5K2.0. In United States v. Saldana,
we stated that a district court “does not abuse its discretion in
deciding to upwardly depart when its reasons for doing so (1)
advance the objectives set forth in 18 U.S.C. § 3553(a)(2)” and
6
(2) “are justified by the facts of the case.” 427 F.3d 298, 310
(5th Cir. 2005) (citing 18 U.S.C. § 3742(j)(1)). Further,
Although Booker excised § 3553(b), the directive to consider
the heartland of an offense and enumerate particular reasons
for a departure from the sentencing range lives on in U.S.
Sentencing Guideline § 5K2.0 and, implicitly, in § 3553(a)’s
requirement that the court consider the guidelines and the
appropriate sentencing range and § 3553(c)’s requirement
that the court enumerate reasons for sentencing without the
range.
Id. at 310 n.46. Though the district court did not specifically
cite to § 3553(a)(2), the reasoning behind the court’s decision
involved consideration of approved factors under this section,
including the nature and circumstances of the offense, as well as
the need to provide just punishment and to promote adequate
deterrence to criminal conduct.2 This reasoning supports the
district court’s upward departure, which was well within the
statutory limit.
Section 5K2.0 provides that a district court may depart from
the Guidelines where it determines that there exist “an
aggravating circumstance[] of a kind or to a degree not
adequately taken into consideration” by the Guidelines. U.S.S.G.
§ 5K2.0(a)(1). The district court calculated the applicable
Guidelines range for the failure-to-appear offense but determined
that this range was not reasonable under the circumstances. The
2
While the written order identified § 5K2.21 as the basis
for the sentence, it also stated that “[t]he defendant absconded
from a serious drug offense in which co-defendants received no
less than 52 months custody.”
7
court considered the fact that the co-defendants in Gonzalez’s
case who did not flee received significantly higher sentences,
that Gonzalez would have faced a sentence of at least 37 to 46
months has he been convicted of the drug charges, the amount of
time for which Gonzalez had absconded, the detrimental effect
that this may have had on the evidence against him, and the fact
that imposing a much lower sentence would result in a windfall to
Gonzalez for fleeing, which might encourage other criminals to
abscond in hopes of reducing any future punishment. The district
court imposed a 36-month sentence, just below the sentence
Gonzalez could have received on the drug charges that were
dismissed.
Gonzalez cannot demonstrate plain error because he did not
show that his substantial rights were affected. Although the
upward departure is not justified under § 5K2.21, it is proper
under § 5K2.0l; nor is there anything in the record to indicate
the district court would have sentenced him differently.3
3
Recently, in United States v. Jones, we noted the tension
in our decisions with regard to the third prong of the plain
error test. 444 F.3d 430, 437-38 (5th Cir. 2006). In the
context of a district court misapplying the Guidelines in its
written statement of reasons, we have upheld the defendant’s
sentence because the trial judge could reinstate the same
sentence. Id. (citing United States v. Ravitch, 128 F.3d 865,
869 (5th Cir. 1997)). In the context of misapplication or
misinterpretation of an enhancement under the Guidelines, we
inquired whether, but for the district court’s misapplication of
the Guidelines, it was reasonably probable the defendant would
have received a lesser sentence. Id. (citing United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (finding that
defendant satisfied the third prong of the plain error test)).
8
Because “the requirement that a district court write down its
reason for imposing a departure from the [G]uidelines range
remains binding [post-Booker],” Saldana, 427 F.3d at 310 n.48,
we REMAND to the district court to amend the sentencing order
consistent with this opinion. See United States v. Zuniga-
Peralta, 442 F.3d 345, 349 n.3 (5th Cir. 2005) (“[W]ere we to
conclude that the court did not sufficiently comply with §
3553(c) and was required to restate its reasons for departure in
the written judgment and commitment order, the remedy here would
be not a vacating of the sentence, but a remand for correction of
the written judgment. The clarity and correctness of the court’s
reasoning supporting departure leave no room to require
resentencing.”).
In the instant case, the district court could impose the same
sentence on remand, and it is not reasonably probable that
Gonzalez would receive a lesser sentence on remand; therefore, as
in Jones, we need not delve into the question whether the two
“can be harmonized or which standard governs.” Id. at 438.
9