UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4984
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAURENCIO GONZALEZ,
Defendant - Appellant.
No. 05-4988
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE JESUS GUTIERREZ, a/k/a Chuey,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-405)
Argued: November 30, 2006 Decided: March 14, 2007
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Emanuel M. Levin, EMANUEL M. LEVIN & ASSOCIATES, P.A.,
Baltimore, Maryland; Caroline D. Ciraolo, ROSENBERG, MARTIN &
GREENBERG, L.L.P., Baltimore, Maryland, for Appellants. Jefferson
McClure Gray, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, James G. Warwick,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Defendants Laurencio Gonzalez and Jose Jesus Gutierrez were
convicted of conspiracy to import and distribute cocaine and
marijuana supplied by a large narcotics cartel in Tijuana, Mexico.
Defendants raise several challenges to their convictions and
sentences. We affirm.
I.
Between mid-2002 and October 2004, Gonzalez and Gutierrez
operated a successful narcotics trafficking business based in Los
Angeles, California. Claiming to have close ties to the Tijuana
cartel, Defendants supplied cocaine to purchasers across the
country in a number of cities, including Chicago, Washington, D.C.,
and Norfolk, Virginia.
In December 2002, Gonzalez met Fred Brooks, a Baltimore-area
distributor who had developed the ability to move large amounts of
narcotics supplied by Jose Mendoza, a Los Angeles marijuana dealer
who knew the Defendants. Soon Gonzalez was supplying Brooks with
regular deliveries of cocaine for Brooks to distribute in the mid-
Atlantic region. Gonzalez delivered the cocaine to Brooks by means
of individual couriers who were recruited and then supervised by
Gutierrez. Gutierrez told Brooks that “he was the person in charge
of the couriers” and was responsible for “pick[ing] up the money
and the drugs for [Gonzalez].” J.A. 228. Gutierrez recruited
3
female couriers to drive sport utility vehicles with the cocaine
packed into spare tires affixed underneath the vehicles. After
dispatching the couriers on their drug runs, Gutierrez followed
them in a separate vehicle. Gutierrez was ultimately responsible
for making sure that the cocaine was distributed and payment was
collected.
By May 2003, Gonzalez and Gutierrez were sending as much as 40
kilograms of cocaine to Baltimore every ten days. Gonzalez and his
girlfriend flew to Baltimore to discuss increasing the amount of
cocaine he was fronting to Brooks. During the trip, Gonzalez
rented a car and drove to Chicago, another distribution hub. Law
enforcement officers eventually obtained the receipt for the rental
car in a search of Gonzalez’s garage.
Shortly after the meeting between Brooks and Gonzalez, two of
Gutierrez’s couriers were stopped outside of Nashville, and law
enforcement discovered 27 kilograms of cocaine marked SOTO, a mark
associated with drugs distributed by the Tijuana cartel. One of
the couriers was carrying notes with Gutierrez’s nickname. The
arrest caused Gonzalez to change his method of delivering the
narcotics to the east coast, adopting the system developed by
Brooks and Mendoza for shipping marijuana across the country.
Brooks built large electrical power cases which Defendants used to
hide the drugs; the cases were shipped by air to Brooks. Brooks
4
would return the cases to the west coast stuffed with the cash
proceeds of his drug sales.
In August 2003, customs agents arrested Brooks and recovered
substantial quantities of narcotics from his apartment, including
33 kilograms of cocaine marked SOTO. Brooks, who received a large
shipment of cocaine immediately before his arrest, cooperated with
authorities to set up a sting. Brooks notified Mendoza that he had
shipped the cash proceeds in the usual manner; authorities,
however, had packed the electrical cases with paper. When couriers
arrived to pick up the cases, law enforcement officials stopped
them and pretended to have been tipped off about the cash. This
prompted Gonzalez and Gutierrez to travel to Baltimore to meet with
Brooks in person to discuss the situation. Gonzalez proposed a
solution that would permit them to continue the business
relationship with Brooks, and the meeting ended amicably. Brooks
then cut off contact with Gonzalez and Gutierrez.
Gonzalez was arrested on October 28, 2004, in his Los Angeles
apartment. At approximately 1:00 p.m., six or seven officers
executed the arrest warrant for Gonzalez, handcuffing him in his
living room and then performing a protective sweep of the apartment
to ensure no one else was present.
The arresting officers asked Gonzalez for permission to search
the apartment, to which Gonzalez replied, “I don’t have anything to
hide.” J.A. 138. Gonzalez signed a written consent form regarding
5
the apartment. Although the consent form did not refer to
Gonzalez’s separate garage unit, Gonzalez identified the garage
associated with his apartment unit. The search turned up numerous
cell phones that had logged calls to Gutierrez and Mendoza. Also,
officers found in the garage the rental car agreement Gonzalez kept
from his May 2003 Baltimore meeting with Brooks. And, officers
discovered tally sheets for cocaine sales, as well as documents
printed from the website for the federal district court in Maryland
where Brooks made his initial appearances.
Gonzalez and Gutierrez were charged with conspiracy to import
cocaine and marijuana from Mexico into the United States, and
conspiracy to distribute and possess with intent to distribute
cocaine and marijuana. Gonzalez and Gutierrez were appointed
counsel. About two weeks before trial was scheduled to begin,
Defendants filed identical pro se motions asserting that their
attorneys were hindered by a “conflict of interest” arising from
the attorneys having sworn an oath as lawyers “to support
[Defendants’] ‘adversary’ the UNITED STATES OF AMERICA and the US
District Court.” J.A. 103. Additionally, Gonzalez and Gutierrez
each filed an affidavit essentially asserting that the district
court lacked subject matter jurisdiction and was required to
dismiss their cases.
During a hearing on Defendants’ motion for a bill of
particulars less than two weeks before trial, both Gonzalez and
6
Gutierrez notified the court that they had fired their court-
appointed attorneys and restated their belief that the court lacked
jurisdiction. Neither Gonzalez nor Gutierrez, however, indicated
that he wished to represent himself. In fact, in their written
motions filed prior to trial, both Gonzalez and Gutierrez indicated
they “want[ed] counsel” but could not find any attorney who was not
conflicted by the oath. J.A. 103. The court explained that
Defendants could proceed to trial with their court-appointed
attorneys or they could represent themselves. Defendants were non-
responsive to the court’s questions, repeatedly stating their
belief that the court lacked jurisdiction and that they had fired
their attorneys. Defendants repeated this tactic throughout the
course of the trial. Defendants never invoked the right to
represent themselves and even refused opportunities to cross-
examine witnesses after objecting to the participation of their
court-appointed attorneys.
Following a five-day trial, the jury convicted Gonzalez and
Gutierrez on both conspiracy counts. Gonzalez received a 540-month
sentence and Gutierrez received a 480-month sentence.
II.
A.
Defendants contend that the district court committed
reversible error in its handling of their pro se “motions.”
7
Defendants first argue that the district court’s refusal to
discharge their court-appointed lawyers violated their implied
right to self-representation under the Sixth Amendment. See
Faretta v. California, 422 U.S. 806, 819 (1975).
The “exercise of the right of self-representation necessarily
entails a waiver of the right to counsel--a defendant obviously
cannot enjoy both rights at trial.” United States v. Frazier-El,
204 F.3d 553, 558 (4th Cir. 2000). Therefore, the assertion of the
right of self-representation must be clear and unequivocal. See
Faretta, 422 U.S. at 835; Frazier-El, 204 F.3d at 558. This
requirement guards against the inadvertent waiver of the right to
counsel as well the manipulation of “the mutual exclusivity of the
rights to counsel and self-representation.” Frazier-El, 204 F.3d
at 559. If the assertion of self-representation is ambiguous, the
right to counsel enjoys “constitutional primacy.” United States v.
Singleton, 107 F.3d 1091, 1102 (4th Cir. 1997). The right of self-
representation is not absolute and sometimes must give way to “the
government’s interest in ensuring the integrity and efficiency of
the trial.” Martinez v. Court of Appeal of California, 528 U.S.
152, 161-62 (2000).
Defendants did not assert their right of self-representation
expressly or implicitly -- and certainly they did not do so in the
required clear and unequivocal fashion. Gonzalez and Gutierrez
point only to their repeated assertions that they had fired their
8
attorneys, which did not indicate an intention to proceed pro se.
See Frazier-El, 204 F.3d at 559. To the extent that Defendants’
obstructive conduct created ambiguity regarding their intent to
represent themselves, the district court’s refusal to discharge
counsel was proper in view of the preeminence of the right to
counsel. See Singleton, 107 F.3d at 1096. Accordingly, we
conclude that the district court did not commit error in having
Defendants proceed to trial with appointed counsel.
B.
Defendants next argue that the district court was required but
failed to conduct a hearing on their pro se motions. We disagree.
Defendants’ motions were, on their face, completely frivolous.
As for the argument that the court lacked jurisdiction, Defendants
apparently believed that because the indictment spelled their names
using all capital letters, the government failed to properly
identify them as “real, live flesh and blood M[en].” J.A. 105.
Appellate counsel concedes the legal absurdity of these claims.
For that reason alone, no formal hearing was required to address
this issue.
The bases for Defendants’ pro se motions to dismiss counsel
were equally frivolous. Gonzalez and Gutierrez claimed that their
court-appointed attorneys were unable to provide sufficient
representation because of a conflict of interest inherent in the
9
oath administered to prospective attorneys seeking admission to the
bar, requiring them to support and defend the Constitution.
Presumably, Defendants believe their attorneys, having taken the
oath, are beholden to the United States government, which is in an
adversarial posture to Defendants. Defendants, however, never
invoked their right to self-representation or indicated in any way
that they wished to represent themselves at any point during the
trial. Rather, Defendants repeatedly stated throughout the trial
only that their court-appointed attorneys had been fired and did
not represent them; however, when offered an opportunity to cross-
examine a witness in lieu of counsel, Defendants typically
responded simply that “I don’t consent to the proceedings.” J.A.
214.
By the same token, Defendants never requested new counsel.
Indeed, Defendants acknowledged that their basis for objecting to
court-appointed counsel –- the attorney’s oath –- eliminated new
counsel as well: “Matter of fact I want counsel, yet every
attorney I have spoken to has a ‘conflict of interest’ because he
has sworn an ‘oath’ to support my ‘adversary’ the UNITED STATES OF
AMERICA and the US District Court.” J.A. 103. Thus, Defendants
adopted an obstructionist position, neither requesting new counsel
nor invoking the right to self-representation. Accordingly, for
the district court to have conducted a formal hearing would have
been pointless.
10
Nevertheless, Defendants suggest that the district court
should have conducted a hearing to ensure Defendants understood the
self-defeating course they were pursuing and its consequences.
Defendants claim that, in fact, the district court’s comments
encouraged them to continue with their strategy. Specifically,
Defendants point to the court’s observation that Defendants were
“probably not doing yourself much harm either, so, if it makes you
feel good to say those things or repeat those things, then
certainly you should do that . . .” J.A. 128.
We disagree. The district court made clear throughout the
trial that Defendants could rely on counsel or represent
themselves, but that their decision to do neither one was mistaken
and doomed to fail:
THE COURT: Okay. Mr. Gutierrez, . . .
the Government is paying for your attorney.
The Courts are paying for your attorney. Your
choices are generally to go to trial with
[your current attorney] or to go to trial by
yourself. I would urge you to consult with
[your attorney] with a view to resolving the
differences between you.
. . .
DEFENDANT GUTIERREZ: Are you aware I
object? I don’t consent. I don’t understand.
I never signed anything.
. . .
THE COURT: Okay. You talked to someone
in prison, haven’t you? You’ve had a prison
lawyer helping you, haven’t you?
DEFENDANT GUTIERREZ: I object.
THE COURT: Yes.
11
DEFENDANT GUTIERREZ: I don’t consent. I
don’t understand. I never signed anything.
. . .
THE COURT: Mr. Gutierrez, in determining
whether you should be following the advice of
a prison lawyer, you should probably notice
that he is in prison, and that is probably an
indication that he is not particularly good at
his avocation of giving legal advice. I would
advise you to consult with your
attorney. . . .
DEFENDANT GUTIERREZ: Are you aware,
Judge, I object, I don’t consent, I don’t
understand, and I never signed any contract
with this Court or any agency or agent
affiliated with this Court that compelled the
specific terms and conditions?
THE COURT: . . . It’s unfortunate, but
there are many sort of misimpressions floating
around prisons. This is criminal laws, not
contracts. People behind bars with little
education and no legal training make all sorts
of mistakes about the law, and then they
convince other people that they’ve got a basis
for relief, and then these people come into
court, . . . say[ing] silly things like you’re
saying, and then they end up serving years and
years in prison . . . .
So it is truly sad when someone gets
fooled or conned into believing that he has
discovered some secret way out of prison by
saying a few magic words that have just no
basis in the law or anything else, and
obviously I don’t have any ability to make you
see that you’ve been conned, and that those
words that you say which you probably believe
in are not magic words. They’re not going to
get you out of this scrape, so, if you wish to
continue, you may do that, but you’re not
doing yourself any good.
J.A. 126-28.
12
Considering the entirety of the district court’s comments, we
conclude the district court communicated in unequivocal fashion the
folly of Defendants’ approach.
Moreover, it is unclear why a formal hearing would have made
the slightest difference. Defendants were completely nonresponsive
to the district court’s questions regarding how they wished to
proceed. Defendants have not demonstrated that a hearing would
have resulted in cooperation from Gonzalez or Gutierrez as to the
issue of representation. We conclude that the district court did
not commit error in failing to conduct a hearing with respect to
this issue.
III.
Gonzalez argues that the warrantless search of his apartment
and garage was unlawful and required the suppression of the
evidence recovered in the search. Under the Fourth Amendment,
warrantless searches are unreasonable per se unless an exception to
the warrant requirement applies. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). Consent to search by the suspect or
property owner is an exception, but the government carries the
burden of showing that the consent was given freely and
voluntarily. See id. at 222.
Around mid-day on October 28, 2004, six or seven officers from
the Los Angeles Sheriff’s Department went to assist in the
13
execution of an arrest warrant for Gonzalez at his one-bedroom
apartment. The officers, wearing SWAT gear, found Gonzalez in his
living room, handcuffed him and performed a protective sweep of the
apartment to ensure no one else was present. After the officers
determined the apartment was secure, one of them asked Gonzalez for
consent to search the apartment. When Gonzalez stated that he had
nothing to hide, officers presented him with the following Consent
to Search form which was read to him in English and Spanish, which
he signed:
I, LAURENCIO GONZALEZ, HEREBY AUTHORIZE
OFFICER GREG THURMAN (TFO), OF THE HIDTA TASK
FORCE TO CONDUCT A COMPLETE SEARCH OF THE
PREMISES LOCATED AT 10526 OTIS ST. #A SOUTH
GATE. THIS OFFICER, AND OTHERS WHO MAY ASSIST
HIM, ARE AUTHORIZED BY ME TO ENTER THE
PREMISES AND CONDUCT ANY NECESSARY
INVESTIGATION, INCLUDING, BUT NOT LIMITED TO,
TAKING PHOTOGRAPHS, PERFORMING CHEMICAL TESTS,
LIFTING FINGERPRINTS, AND REMOVING ANY ITEMS
THEY DEEM OF INVESTIGATIVE VALUE OF POSSIBLE
EVIDENCE. . . . THIS WRITTEN PERMISSION IS
BEING GIVEN BY ME TO THE ABOVE NAMED OFFICER .
. . VOLUNTARILY AND WITHOUT THREATS OR
PROMISES OF ANY KIND.
J.A. 102.
Gonzalez also had a garage unit that was not physically
attached to the apartment but was located within the complex. The
Consent to Search form did not specifically reference the garage;
however, Detective Thurman testified that he discussed the garage
with Gonzalez and obtained consent specifically for a search of the
garage. After Gonzalez identified his garage, the officers
conducted the search of both the apartment and the garage.
14
Prior to trial, Gonzalez moved to suppress the evidence
recovered in this search. The district court denied the motion,
finding that the “uncontradicted testimony is the search was
conducted pursuant [to] a consent to search [form] obtained
voluntarily from the defendant Gonzalez.” J.A. 198. We review the
district court’s factual determination that Gonzalez voluntarily
consented for clear error. See Schneckloth, 412 U.S. at 248-49.
Gonzalez argues the district court clearly erred in finding
that his consent was voluntary, in that he was handcuffed and
surrounded by numerous officers in his small apartment when he
signed the form. In determining the voluntariness of a suspect’s
consent to search, the district court must take into account the
totality of the circumstances surrounding the consent. See id. at
227. The question is whether a reasonable person in the suspect’s
position “would have felt free to decline the officers’ requests or
otherwise terminate the encounter.” Florida v. Bostick, 501 U.S.
429, 438 (1991). Relevant to the totality of the circumstances
review are factors such as the suspect’s age, intelligence,
education, experience with the justice system, as well as the
conditions surrounding the consent, such as the number of officers
present, the duration of the relevant events, and the place and
time of the consent. See United States v. Lattimore, 87 F.3d 647,
650 (4th Cir. 1996) (en banc).
15
We conclude that the district court’s finding of voluntariness
was not clearly erroneous. In addition to the consent form itself,
which was read to Gonzalez, testimony from arresting officers
established that Gonzalez was very calm –- even cooperative --
during the search, not confused or intimidated. According to
Detective Thurman, “[Gonzalez] said, yes, to search everything. He
had nothing to hide. . . . He was very cooperative, polite. He
didn’t seem worried or concerned about our presence. . . . [I]t
didn’t appear to him that it was a very big deal we were even
there.” J.A. 165. And, at 35, Gonzalez had more than passing
familiarity with the justice system, having been arrested
previously a number of times. In view of this evidence, we cannot
say the district court’s conclusions constituted clear error.
Gonzalez also argues that, to the extent he consented to the
search, the officers exceeded the scope of that consent.
Primarily, he argues that his consent did not extend to the garage.
A person may limit the scope of his consent; however, if no express
limit is imposed by the suspect, then the issue is what a
reasonable person under the circumstances would believe is included
within the scope of the consent. See Florida v. Jimeno, 500 U.S.
248, 251 (1991). Although the consent form did not refer to the
garage as part of the premises to be searched, Detective Thurman
testified that he specifically asked Gonzalez about the garage and
received permission to search. Gonzalez points out that Officer
16
Roche testified that he did not hear anyone ask specifically about
the garage. But Roche’s testimony does not render the court’s
findings clearly erroneous. Roche’s testimony is not even
inherently inconsistent with Thurman’s; he merely testified that he
did not hear Thurman or anyone else ask Gonzalez about a garage.
Because Thurman’s testimony was ultimately the only evidence
specifically addressing the garage, the district court had a
sufficient basis for finding that the search of the garage did not
exceed the scope of Gonzalez’s consent.1
IV.
Gonzalez and Gutierrez contend that the district court
improperly applied a four-level “leadership role” enhancement under
§ 3B1.1(a) in determining their advisory guidelines sentences. In
calculating an offender’s total offense level under the sentencing
guidelines, the sentencing court must impose an upward adjustment
of four levels if the offender was “an organizer or leader of a
1
Gonzalez raises a new theory on appeal, suggesting that the
officers remained on the premises longer than necessary to arrest
Gonzalez and were therefore “unlawfully present” when they asked
for consent to search the premises. Gonzalez contends that this
unlawful presence nullified the consent and tainted the subsequent
search. Because Gonzalez failed to present this argument to the
district court below, we review it only for plain error. See
United States v. Olano, 507 U.S. 725, 731-32 (1993). We need not
expressly address this claim, except to say that it falls far short
of meeting the exacting plain error standard.
17
criminal activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a).
Defendants do not challenge the district court’s finding that
the conspiracy involved more than five individuals. Accordingly,
the question is whether Gutierrez or Gonzalez “was an organizer,
leader, manager or supervisor of people.” United States v. Sayles,
296 F.3d 219, 226 (4th Cir. 2002). To qualify for this particular
enhancement, the defendant need not have served in a leadership
capacity as to all of the other participants. It is only necessary
that defendant was “the organizer, leader, manager, or supervisor
of one or more other participants.” U.S.S.G. § 3B1.1, comment. n.2
(emphasis added).
The Guidelines list seven factors for the sentencing court to
consider in determining whether a defendant played a leadership
role:
the exercise of decision-making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, comment. n.4.
The “recruitment of accomplices” factor is particularly
applicable with regard to Gutierrez, who was in charge of the
couriers. Gutierrez recruited drivers and “shadowed” them on their
18
cross-country drug runs. Brooks testified that when Gutierrez
delivered narcotics to him, he was always with his female couriers,
although he kept them out of sight. Gutierrez explained that the
arrest of the two couriers would not sink the entire operation
because “they only knew [Gutierrez].” J.A. 243. Thus, the coast-
to-coast delivery system was directed by Gutierrez, and the
evidence suggests he was the only leader with whom the couriers had
contact. Gutierrez was ultimately responsible for the completion
of the couriers’ delivery duties, which were substantial given the
frequency -- Brooks received delivery every ten days -- of the
cross-continent drug runs prior to the Nashville arrests in May
2003. Gutierrez arranged and “determined the details and
logistics of the [narcotics] deliver[ies]” and payments, which
qualify as leadership activities for purposes of the supervisory
role enhancement under U.S.S.G. § 3B1.1(a). See United States v.
Skoczen, 405 F.3d 537, 549-50 (7th Cir. 2005). We conclude that,
on the record before it, the sentencing court did not clearly err
in applying the four-level increase under U.S.S.G. § 3B1.1(a).
Gonzalez asserts a similar challenge to the leadership role
enhancement imposed with respect to his sentence, arguing that he
was merely a sales agent for the Tijuana drug cartel, not a leader.
The evidence clearly permits the conclusion, however, that Gonzalez
asserted authority over Gutierrez, made final decisions regarding
the shipping method after Brooks and Mendoza presented the idea for
19
his consideration, and traveled to Maryland to make decisions in
response to setbacks such as the arrests or the interception of
Brooks’s shipment of “cash.” We conclude that the sentencing
court’s finding that Gonzalez played a leadership role that merited
a four-level increase to his offense level under U.S.S.G.
§ 3B1.1(a) was not clearly erroneous.2
V.
For the foregoing reasons, Defendants’ convictions and
sentences are affirmed.
AFFIRMED
2
Defendants also argue that the district court failed to
consider all of the factors set forth in 18 U.S.C. § 3553(a) and
imposed unreasonable sentences. We disagree. “[A] district court
need not explicitly discuss every § 3553(a) factor on the record.”
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. June 20, 2006) (No. 05-
11659). The district court imposed sentences that fell within the
lower half of Defendants’ guidelines ranges, and “a sentence
imposed within the properly calculated Guidelines range . . . is
presumptively reasonable.” United States v. Green, 436 F.3d 449,
457 (4th Cir.) (internal quotation marks omitted), cert. denied,
126 S. Ct. 2309 (2006). We conclude Defendants have failed to
rebut the presumption of reasonableness.
20