United States v. Jose Gonzalez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 20-2932 and 20-2933
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UNITED STATES OF AMERICA
v.
JOSE GONZALEZ,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 2-12-cr-00759-001 and 2-20-cr-00271-001)
District Judge: Honorable Susan D. Wigenton
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 15, 2021
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Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.
(Filed: January 31, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PHIPPS, Circuit Judge.
Jose Gonzalez worked as a self-employed personal trainer in New York City; he
also dealt drugs on the side. The latter conduct led to two federal convictions, one for
distributing and possessing with the intent to distribute less than five grams of heroin, see
21 U.S.C. §§ 841(a)(1), (b)(1)(C), and another for conspiring to burglarize pharmacies of
controlled substances, see 18 U.S.C. § 2118(d). For those crimes, he received prison
sentences, followed by concurrent three-year terms of supervised release, which began
upon his release from prison in 2017.
Gonzalez’s supervised release did not go well. He was charged with state-law
misdemeanors related to a physical altercation he had with a doorman at his ex-
girlfriend’s apartment building. Although those charges were later dropped, Gonzalez’s
probation officer still considered that conduct to have violated the conditions of his
supervised release. And that was not his only violation of those conditions. He also
tested positive for cocaine and marijuana use, and he failed to attend required substance
abuse treatment. Twice he did not timely report to his probation officer, and on other
occasions he did not follow the officer’s instructions or respond to the officer’s inquiries.
He also impermissibly left New Jersey to train a client in New York, violating the
COVID-19 stay-at-home orders issued by those states in the process.
To address those issues, the District Court held a revocation hearing. There,
Gonzalez admitted to two violations: one for his refusal to submit to required drug
treatment and another for his failure to follow his probation officer’s instructions. Under
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the Sentencing Guidelines, those constitute Grade C violations, see U.S.S.G.
§ 7B1.1(a)(3), and when coupled with Gonzalez’s criminal history category of III, they
yield a sentencing range of five to eleven months’ imprisonment, see id. § 7B1.4(a).
After hearing arguments from Gonzalez and the prosecutor, the District Court revoked
Gonzalez’s supervised release, considered the factors in 18 U.S.C. § 3553(a), and
sentenced Gonzalez to two concurrent terms of eight months’ imprisonment – to be
followed by another year of supervised release – all as a result of his two admitted
violations of the conditions of his supervised release.
Through a timely appeal of that sentence, Gonzalez invoked this Court’s appellate
jurisdiction. See 18 U.S.C. § 3742(a). He now argues that his within-Guidelines
sentence was substantively unreasonable. See United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009) (en banc); United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). As
he sees it, the District Court abused its discretion in determining his punishment by not
properly accounting for three mitigating factors: the alleged heightened risk that COVID
poses to him in prison due to his medical condition, thrombocytopenia; the interruption
that imprisonment will cause to his personal training business; and his “strong support
network” consisting of his mother and clients. Appellant’s Br. 14. Had the District Court
properly considered those factors, he contends, it would have eschewed imprisonment
altogether and imposed a noncustodial sentence.
But the District Court did consider those factors, and a lengthy explanation is not
necessary to justify a within-Guidelines sentence. See Chavez-Meza v. United States,
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138 S. Ct. 1959, 1964 (2018). Moreover, a within-Guidelines sentence may be presumed
reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007) (permitting appellate
courts to presume that within-Guidelines sentences are reasonable); United States v.
Handerhan, 739 F.3d 114, 119–20 (3d Cir. 2014) (“If the sentence is within the
applicable Guidelines range, we may presume that the sentence is reasonable.” (citing
Rita, 551 U.S. at 350–51)). Here, where the District Court carefully considered
Gonzalez’s circumstances and provided a detailed explanation for his sentence, the
presumption of reasonableness applies, and Gonzalez’s three counterarguments do not
demonstrate that his sentence was unreasonable.
First, as to the supposed increased risk that Gonzalez faces from COVID,
Gonzalez’s one proffered medical article does not conclude that thrombocytopenia
increases one’s risk of contracting or becoming severely ill from COVID. And, as the
District Court noted, thrombocytopenia had not been identified by the Centers for
Disease Control and Prevention as a risk factor for COVID. Nor did Gonzalez explain
how COVID would pose a greater risk to him in prison, as opposed to on supervised
release. For these reasons, Gonzalez’s COVID concerns do not render his within-
Guidelines sentence unreasonable.
Second, the interruption to Gonzalez’s work does not constitute unreasonableness.
The District Court complimented Gonzalez as “apparently a phenomenal physical or
personal trainer” who was “willing to work.” Sentencing Tr. at 29:19–20, 25 (JA 50).
But even that favorable assessment does not liberate Gonzalez from his “responsibilities
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. . . under supervised release.” Id. at 32:20 (JA 53). Thus, consequences for Gonzalez’s
business do not make his within-Guidelines sentence unreasonable.
Third, Gonzalez’s support network does not render his within-Guidelines sentence
unreasonable. Although the District Court recognized that “it means a lot that
[Gonzalez’s mother and clients went] to court to support [him] in the middle of a
pandemic,” id. at 34:13–14 (JA 55), an eight-month prison sentence was still reasonable
due to Gonzalez’s troubling pattern of behavior and lack of respect for the terms of his
supervised release.
In sum, the District Court meaningfully considered Gonzalez’s arguments. Its
imposition of a within-Guidelines prison sentence for his violations of the conditions of
his supervised release was not an abuse of discretion, and we will affirm the judgment of
conviction.
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