United States v. Frederico Gonzalez

Case: 09-10756 Document: 00511101611 Page: 1 Date Filed: 05/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2010
No. 09-10756
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FREDERICO GONZALEZ, also known as Viejon,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-329-13
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Frederico Gonzalez appeals the sentence of life imprisonment imposed at
resentencing for his conviction for conspiracy to distribute and possess with the
intent to distribute cocaine, cocaine base, marijuana, and MDMA and conspiracy
to transport and attempt to transport monetary instruments from inside the
United States to outside the United States. This court previously vacated
Gonzalez’s sentence and ordered resentencing in light of United States v. Booker,
543 U.S. 200 (2005).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-10756
Gonzalez argues that the district court erred in applying a sentence
enhancement for possession of a dangerous weapon pursuant to U.S.S.G.
§ 2D1.1(b)(1). He argues that the district court did not find beyond a reasonable
doubt that he possessed a firearm and the court looked to pre-Booker standards
in making its determination.
Because Gonzalez was resentenced after the decision in Booker, there was
no error in the district court’s finding sentencing factors by a preponderance of
the evidence. See United States v. Stevens, 487 F.3d 232, 246 (5th Cir. 2007);
United States v. Fambro, 526 F.3d 836, 851 & n.96 (5th Cir.), cert. denied, 129
S. Ct. 625 (2008). Additionally, the district court did not look to improper
standards. Based on the type of firearms found at Gonzalez’s residence, the drug
paraphernalia also found at the residence, and the testimony that Gonzalez
trafficked drugs from this same residence, the district court’s determination that
Gonzalez possessed a firearm in connection with his drug-trafficking offense is
plausible in light of the record as a whole and is not clearly erroneous. See
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); United States v.
Mitchell, 31 F.3d 271, 277 (5th Cir. 1994).
Gonzalez also contends the district court’s determination of drug quantity
under U.S.S.G. § 2D1.1 is erroneous because the record supports a finding that
he was responsible for only 145 kilograms of cocaine rather than at least 150
kilograms. The district court should approximate the amount of drugs involved
in an offense when the amount seized does not reflect the scale of the offense.
See § 2D1.1, comment. (n.12). In making this approximation, the district court
may consider any evidence which has “sufficient indicia of reliability.” U.S.S.G
§ 6A1.3, comment.; United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir.
1990). The district court properly approximated the amount of drugs
attributable to Gonzalez from the Presentence Report and the testimony of
Special Agent Aziz, both of which are sufficiently reliable. Although the exact
numbers from Special Agent Aziz’s testimony totaled 145 kilograms, his
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Case: 09-10756 Document: 00511101611 Page: 3 Date Filed: 05/05/2010
No. 09-10756
testimony indicated that Gonzalez was responsible for a greater amount. Special
Agent Aziz explained that individuals were observed making several drug
deliveries to Gonzalez’s residence. Though the exact quantities of these
deliveries were not determined by his testimony, the district court’s
determination that the additional amount was more than five kilograms of
cocaine was plausible in light of the record as a whole and therefore not clearly
erroneous. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
Gonzalez argues that his total offense level was miscalculated by the
district court because the court applied enhancements under U.S.S.G. § 2S1.1
based on his money laundering conviction. The record does not support
Gonzalez’s argument. Though the court initially improperly stated that
Gonzalez’s offense level was enhanced under § 2S1.1, the record reflects that the
court was corrected and properly calculated Gonzalez’s total offense level at 44.
Moreover, the Supplement to the Presentence Report also properly calculates
Gonzalez’s offense level.
Gonzalez contends that his within-guidelines sentence is substantively
unreasonable. He argues that his codefendants received sentences of 30 years
or less. Because Gonzalez does not show that his codefendants were similarly
situated, he fails to establish that his sentence is unreasonable due to a disparity
between his sentence and his codefendants’ sentences. See United States v.
Candia, 454 F.3d 468, 476 (5th Cir. 2006). Additionally, the district court
considered Gonzalez’s arguments and determined that the factors of 18 U.S.C.
§ 3553(a) did not warrant a sentence outside the guidelines range. There is no
indication that the district court abused its discretion in weighing the § 3553(a)
factors or that Gonzalez’s sentence is substantively unreasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
Accordingly, the judgment of the district court is AFFIRMED.
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