Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-20-2005
USA v. Gonzalez
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1129
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1129
UNITED STATES OF AMERICA
v.
JULIAN GONZALEZ,
a/k/a PETE
Julian Gonzalez,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 01-cr-00545-2
(Honorable John R. Padova)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2004
Before: SCIRICA, Chief Judge, McKEE and CHERTOFF * , Circuit Judges
(Filed June 20, 2005)
OPINION OF THE COURT
*
This case was submitted to the panel of Scirica, Chief Judge, McKee and Chertoff,
Circuit Judges. Judge Chertoff resigned after submission, but before the filing of the
opinion. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
SCIRICA, Chief Judge.
Appellant Julian Gonzalez pled guilty to conspiracy to distribute at least five
kilograms of cocaine in violation of 21 U.S.C. § 846; illegal use of a communication
facility in violation of 21 U.S.C. § 843, distribution of cocaine and aiding and abetting in
violation of 21 U.S.C. § 841(a)(1), § (b)(1)(C), and § 2; and possession of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § (b)(1)(A). Gonzalez’s
convictions arose from an interstate cocaine distribution ring and trafficking activities
spanning several years. Co-defendant Hassan Morrison also pled guilty, and co-
defendant Donald Berry was convicted following a jury trial.
The District Court sentenced Gonzalez to 110 months imprisonment, five years of
supervised release, and a $3,000 fine. Gonzalez challenges his sentence, but does not
challenge his conviction. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742.
In his opening brief, filed June 9, 2003, appellant challenged his sentence on the
basis that the District Court erred when it denied his request for a one point downward
departure for acceptance of responsibility. On December 29, 2004, we informed counsel
for both parties that the case was being held c.a.v. pending decision by the United States
Supreme Court in Booker and Fanfan. On February 16, 2005– following the Supreme
Court’s decision in United States v. Booker, 543 U.S. - -, 125 S. Ct. 738 (2005)– we
directed appellant to comment on the applicability of Booker to his case, and to state
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whether he wished to challenge his sentence under Booker. Appellant did not respond.
Accordingly, we review Gonzalez’s sentence for reasonableness, guided by the
sentencing factors listed in 18 U.S.C. § 3553(a). See Booker, 125 S. Ct. at 765-67.
Although the Guidelines are no longer mandatory, we nonetheless begin our sentencing
review with consideration of the applicable Guidelines range.
Gonzalez faced a mandatory minimum sentence of 120 months on the drug
conviction, but he was eligible to benefit from the safety valve which permits a sentence
below the mandatory minimum. See 8 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. He satisfied
the five statutory criteria for the safety valve because he had no prior offenses, his crime
did not involve violence or a firearm, no one was killed or seriously injured, he did not
play a leading role, and the government agreed that he had made a truthful proffer of all
the information he had about the drug conspiracy. 18 U.S.C. § 3553(f).
The large quantity of cocaine attributed to Gonzalez resulted in a base offense
level of 34. See U.S.S.G. § 2D1.1. Under U.S.S.G. § 2D1.1(b)(7), Gonzalez was entitled
to a two-point reduction in his offense level for satisfaction of the safety valve criteria.
Gonzalez was also entitled to a two point reduction in offense level for acceptance of
responsibility under U.S.S.G. 3E1.1(a). Gonzalez had no criminal history points, thus his
criminal history category was I. An offense level of 30 and a criminal history category of
I yields a sentencing range of 97-120 months. Gonzalez received a sentence of 110
months.
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Gonzalez’s sole challenge to his sentence involves the District Court’s failure to
reduce his offense level by one additional point under section 3E1.1(b).
Section 3E1.1(a) of the Sentencing Guidelines provides for a two-level decrease in
the offense level where “defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). An additional one-level decrease is available under
subsection (b):
If the defendant qualifies for a decrease under subsection (a), the offense
level determined prior to the operation of subsection (a) is level 16 or
greater, and upon motion of the government stating that the defendant has
assisted authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional level.
Id. § 3E1.1(b).
The District Court denied Gonzalez’s request for an additional one-level
downward adjustment under U.S.S.G. § 3E1.1(b) for timely acceptance of responsibility,
reasoning as follows:
Taking in consideration all of the circumstances, Mr. Gonzalez, I am going
to overrule the objection– your objection. Your plea did come the day of
trial. The extra point is awarded under circumstances where acceptance of
responsibility is timely and ordinarily those circumstances call for full
acceptance of responsibility prior to the Government preparing for trial.
There was a contested suppression hearing, you testified at the suppression
hearing, and your testimony would be inconsistent, in the judgment of this
Court, with full and timely acceptance of responsibility and, given all of the
circumstances, I do overrule the objection.
Sentencing Hearing, Dec. 12, 2002.
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We have carefully examined the record and find no error in the District Court’s
findings. The commentary to Section 3E1.1 makes clear that the additional one-point
reduction should be awarded only where the defendant’s guilty plea permitted the
government to avoid lengthy and unnecessary trial preparation:
The timeliness of the defendant’s acceptance of responsibility is a
consideration under both subsections, and is context specific. In general,
the conduct qualifying for a decrease in offense level under subsection (b)
will occur particularly early in the case. For example, to qualify under
subsection (b), the defendant must have notified authorities of his intention
to enter a plea of guilty at a sufficiently early point in the process so that the
government may avoid preparing for trial and the court may schedule its
calendar efficiently.
U.S.S.G. § 3E1.1, commentary n.6 (2003).
Gonzalez did not enter his guilty plea “particularly early in the case.” Rather, he
plead guilty the morning trial was scheduled to begin, only after losing his motion to
suppress the evidence seized during the stops of his vehicle. The government had already
prepared for trial. Moreover, Gonzalez refused to commit to the government in advance
that he would plead guilty if his suppression motion was denied. The tardiness of
Gonzalez’s plea required the government to prepare for the suppression hearing– which
involved the testimony of several witnesses– and for the commencement of trial later that
same day. We find the District Court did not err in declining to award a one-level
downward adjustment under § 3E1.1(b) due to Gonzalez’s untimely guilty plea. See
United States v. Hernandez, 218 F.3d 272, 280 (3d Cir. 2000) (affirming District Court’s
denial of one-level downward departure under section 3E1.1(b) where defendant plead
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guilty the day before trial, reasoning that defendant had “put the Government to its burden
of proof” during the month preceding trial despite early indications that he might be
willing to plead guilty).
Gonzalez’s base offense level was correctly calculated, yielding a sentencing range
of 97-120 months. Gonzalez’s 110-month sentence fell within this range. Although the
Sentencing Guidelines are not mandatory, sentences within the prescribed range are
presumptively reasonable. See United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005). We will affirm.
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