United States v. Walter Gonzalez , 84 F. App'x 706 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1141
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of South Dakota.
*
Walter Gonzalez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 19, 2003
Filed: December 22, 2003
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Before MURPHY, LAY, and FAGG, Circuit Judges.
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PER CURIAM.
Walter Gonzalez pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine, distribution of methamphetamine, and possession with
intent to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. At
sentencing, Gonzalez argued he should not have been held accountable, for purposes
of determining his base offense level, for certain drugs seized during a search of an
apartment occupied by his codefendant, Marcos Salamanca. Gonzalez also requested
a downward departure, arguing he had shown extraordinary acceptance of
responsibility by pleading guilty to all counts of the six-count indictment, and by
testifying at Salamanca’s trial, exculpating Salamanca at the risk of harming his own
sentencing posture. In response, the government offered evidence Gonzalez had
rented the apartment from which the drugs were seized, had paid rent to the landlord
in cash, and had once directed Salamanca to retrieve drugs from the apartment’s
freezer and deliver them to Gonzalez at a restaurant. The government also argued
Gonzalez deserved an upward departure for obstruction of justice for testifying
falsely at Salamanca’s trial, which ended in a hung jury and preceded Salamanca’s
guilty plea, rather than a downward departure for extraordinary acceptance of
responsibility.
The district court* overruled Gonzalez’s drug-quantity objection and attributed
to him the drugs found in the residence along with uncontroverted quantities he
distributed to an undercover detective; declined to depart from the Sentencing
Guidelines imprisonment range upon finding a departure unwarranted by the facts of
the case; and sentenced Gonzalez to 121 months in prison and four years of
supervised release.
Gonzalez appeals his sentence, challenging the district court’s drug-quantity
finding. Gonzalez argues the evidence introduced at sentencing showed only that he
had “loaned” Salamanca money by paying rent to the landlord. Gonzalez further
argues his admitted conduct of instructing Salamanca to retrieve drugs from the
apartment’s freezer some six months before the residence was searched provided only
an “ambiguous” connection to the drugs seized during the search. These arguments
do not convince us the district court committed clear error, or leave us with a definite
and firm conviction that a mistake has been made concerning the drug-quantity
finding. See United States v. Nunez, 257 F.3d 758, 764 (8th Cir. 2001) (standard of
review; affirming drug-quantity finding despite defendant’s contention he had sublet
house in which drugs were found). Gonzalez also challenges the district court’s
*
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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denial of his request for a downward departure, but this is an unreviewable exercise
of discretion. See United States v. Elkins, 16 F.3d 952, 954 (8th Cir. 1994). We
cannot review a sentencing court’s refusal to depart from the guidelines absent an
allegation that the district court either had an unconstitutional motive for refusing to
depart or that it erroneously determined it lacked the authority to depart. United
States v. McCarthy, 97 F.3d 1562, 1578 (8th Cir. 1996); United States v. Edwards,
225 F.3d 991, 992-93 (8th Cir. 2000). Accordingly, we affirm.
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