Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-24-2006
USA v. Gomez
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3826
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"USA v. Gomez" (2006). 2006 Decisions. Paper 1726.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-3826
____________
UNITED STATES OF AMERICA
v.
ROBERTO GOMEZ,
a/k/a LUIS RUIZ
Roberto Gomez,
Appellant
____________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 04-cr-00232
District Judge: Honorable Eduardo C. Robreno
____________
Submitted Under Third Circuit LAR 34.1 on January 13, 2006
Before: ROTH, FUENTES, and ROSENN, Circuit Judges
(Filed January 24, 2006)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
Roberto Gomez appeals his sentence based on a violation of 8 U.S.C.
1326(a) and (b)(2) for illegal reentry into the United States. He was sentenced to 57
months imprisonment and a 36-month term of supervised release. Because the District
Court both incorrectly calculated the sentence enhancements under the guidelines and
applied the guidelines as mandatory, we remand for resentencing. The Government
agrees.
Gomez was arrested in 1997 for possession of heroin with intent to
distribute, and in 1998 became a cooperating witness in a drug investigation. In 1999, he
pled guilty to possession of heroin with intent to distribute, perjury, and false
representation of United States citizenship, but was given a downward departure in
sentencing due to his help providing information leading to the arrest of a major drug
trafficker and his subsequent grant jury testimony. He received one sentence of 18
months imprisonment for the three charges. After his release from prison, he was
deported to the Dominican Republic.
Gomez asserts that once in the Dominican Republic, he and his family
received death threats in retaliation for his cooperation with the government. He states
that he illegally reentered the United States to escape the threats. He was arrested in
March of 2004, and in September of 2004 he was sentenced to 57 months imprisonment
and 36 months of supervised release for illegal reentry to the United States after
deportation under U.S.C. § 1326(a) and (b)(2).
Gomez asserts, and the Government agrees, that the District Court applied
the Sentencing Guidelines as mandatory. Gomez objected to the mandatory application
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of the Guidelines at sentencing. In view of the Supreme Court’s recent decision in United
States v. Booker, 125 S. Ct. 738 (2005), the Sentencing Guidelines should be treated as
advisory. Given that the District Court applied the minimum sentence possible under the
guidelines and the alleged circumstances of the reentry, Gomez may have received a
lighter sentence if the Guidelines were taken as simply advisory. We therefore remand
for resentencing under Booker.
In determining the defendant’s criminal history under the Sentencing
Guidelines, the District Court added three points for his conviction for possession with
intent to distribute and three points for the perjury and false representation of U.S.
citizenship conviction. Under the Sentencing Guidelines, however, three points are to be
assigned for “each prior sentence of imprisonment exceeding one year and one month”
and a “prior sentence” is defined as “any sentence previously imposed upon an
adjudication of guilt.” U.S.S.G. § 4A1.1(a) & 4A1.2(a)(1). Because the convictions were
consolidated for sentencing, and Gomez received a single 18-month sentence for all three
charges, he should have only received three criminal history points for the sentence.
Although Gomez did not object to the District Court’s computation of his
criminal history under the Guidelines, we anticipate the District Court will correct this
error in determining the advisory Guideline range upon remand.
For the foregoing reasons, the District Court’s sentence will be vacated and
the case remanded for resentencing.
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