United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 15, 2007
Charles R. Fulbruge III
Clerk
No. 05-11049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY STEVEN GONZALES,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:05-CR-30-2)
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Having entered a conditional guilty plea to two counts of
possession of an unregistered firearm and one count of possession
of a firearm in furtherance of a drug-trafficking crime, Gregory
Gonzales was sentenced to 308 months in prison. He challenges his
conviction and sentence. The Government concedes reversible error
for part of the sentence. CONVICTION AFFIRMED; SENTENCE AFFIRMED
IN PART AND VACATED IN PART; REMANDED FOR RESENTENCING.
I.
*
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this opinion should not be published and is not precedent except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.
In February 2005, Fort Worth, Texas, Police Officers, without
announcing their presence, executed a search warrant at Christopher
Gonzales’ home. He was suspected of drug trafficking. His half-
brother, appellant Gregory Gonzales (Gonzales) was also there. As
Officers entered, they observed Christopher Gonzales diving toward
a firearm. To prevent his gaining possession of the weapon, an
Officer struck him with a firearm, resulting in a cut on his
forehead. The apartment was searched and Officers retrieved
numerous firearms and two pipe bombs. Christopher Gonzales and
Gonzales were both arrested.
Christopher Gonzales was transported to a hospital for
treatment for his injuries; Gonzales, to the local Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) office for
questioning. ATF Agents read Gonzales his Miranda rights, which he
subsequently waived. He described to ATF Agents his involvement in
a drug-trafficking scheme with Christopher Gonzales and provided a
handwritten statement. According to Agents, at no time during the
interview did Gonzales inquire about Christopher Gonzales’ well-
being or exhibit any concern about his brother’s condition.
In February 2005, Gonzales was indicted with Christopher
Gonzales. That May, Gonzales moved to exclude his oral and written
statements to Agents, claiming they were a product of coercion by
them: he alleged he was traumatized after seeing Christopher
Gonzales struck; and, therefore, made the statements out of fear.
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At a joint suppression hearing on 5 May 2005 for both
brothers, ATF Agents testified to the circumstances surrounding the
search of Christopher Gonzales’ apartment and the extent of his
injuries. They claimed Christopher Gonzales was struck by the
Agents as he reached for a firearm. According to Agents, after the
brothers were arrested, Christopher Gonzales was attended to by ATF
medics and was transported to the hospital for stitches; he did not
lose consciousness and was mentally alert. Agents also testified
that, when interviewed, Gonzales: admitted he had been to the
apartment numerous times where he helped his brother sell drugs;
was aware of the presence of firearms in the apartment; and did not
appear concerned about Christopher Gonzales’ well-being during
questioning. Neither brother testified at the suppression hearing.
At the end of the hearing, the district court denied Gonzales’
suppression motion, finding: the Government did not engage in
“coercion or inappropriate persuasion”, causing Gonzales to give
the statements; they were “knowingly, willingly, and voluntarily
made and were done so at a time when [Gonzales] had full possession
of his facilities and knew exactly what he was doing”.
At his rearraignment on 13 May 2005, Gonzales pleaded guilty
to two counts of possession of an unregistered firearm, in
violation of 26 U.S.C. § 5861(d), and one count of possession of a
firearm in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. §§ 924(c)(1)(A) and (B)(i). In doing so, he reserved the
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right to appeal the denial of his suppression motion. The basis
for Gonzales’ plea was provided in a factual resume, signed by
Gonzales on 10 May; articulated by the Government at his
rearraignment; and verbally agreed to then by Gonzales. (In
addition to his agreeing to the factual basis and his statements to
the Agents, by a 30 June 2005 letter to the prosecutor, Gonzales
admitted his crimes and expressed remorse.)
On 26 August 2005, after acquiring new counsel, Gonzales
testified at Christopher Gonzales’ sentencing hearing. Contrary to
the above-described factual resume and his previous statements to
Agents, Gonzales claimed: the day the police arrived at the
apartment was the first time he had been there; he had never seen
any drugs or drug paraphernalia there; the only firearm he saw was
the revolver on the bed at the time the police entered; he had lied
in his handwritten statement because the ATF Agents told him to and
he was fearful of being hit like Christopher Gonzales had been; and
he had lied under oath during the rearraignment when he stated the
factual resume was complete and true. Accordingly, Gonzales’
Presentence Investigation Report (PSR) was amended, recommending
both removing an acceptance-of-responsibility adjustment and
enhancing his base-offense level for obstruction of justice.
In September 2005, Gonzales moved to withdraw his guilty plea,
contending his disavowal of his factual resume at Christopher
Gonzales’ sentencing hearing called into question whether his plea
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was supported by a factual basis. He alleged he had intended to
file the motion earlier, but his first attorney had talked him out
of it.
The district court heard arguments on the plea-withdrawal
motion at the outset of Gonzales’ sentencing hearing on 14
September 2005 and found the statements contained in the factual
basis, and made by Gonzales during rearraignment, were true. The
district court noted Gonzales’ signed factual resume and found,
despite Gonzales’ recent recantation, there was no reasonable
question regarding his guilt. (Christopher Gonzales testified at
the hearing and disavowed Gonzales’ involvement in any illicit
activities.) Accordingly, the court denied Gonzales’ motion to
withdraw his guilty plea.
At the sentencing portion of the hearing, the district court
denied Gonzales’ counsel’s attempt to make new, oral objections to
the PSR, in addition to written objections previously submitted.
Gonzales was sentenced, inter alia: to two concurrent 188-month
sentences for the two possession-of-an-unregistered-firearm counts;
and for possession of a firearm in furtherance of a drug-
trafficking crime, to 120-months’ imprisonment, to be served
consecutive to his 188-month sentences, resulting in 308-months’
imprisonment.
II.
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Gonzales claims the district court erred by: denying his
motion to suppress his statements to the ATF Agents; denying his
motion to withdraw his guilty plea; not allowing him at sentencing
to make new objections to the PSR; and sentencing him to a term of
imprisonment greater than the statutory maximum for possession of
an unregistered firearm.
A.
Concerning the motion to suppress, Gonzales maintains he was
traumatized by seeing his brother hit during the arrest; and
therefore, fearful of his well-being, he gave an involuntary
confession. As noted, he did not testify at the suppression
hearing. Accordingly, no direct evidence supports this contention.
Instead, to rebut testimony by witnesses at the suppression
hearing, he relies in part on his testimony at Christopher
Gonzales’ subsequent sentencing hearing.
The standard for determining whether a confession is voluntary
is whether, under the totality of the circumstances, the statement
is a product of the accused’s “free and rational choice”. United
States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994)
(internal citations and quotations omitted). A district court’s
findings of fact for a suppression hearing are reviewed for clear
error; its conclusions of law, de novo. E.g., United States v.
Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). A finding is clearly
erroneous only when the reviewing court is left with a “definite
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and firm conviction that a mistake has been committed”. Anderson
v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The
evidence is reviewed in the light most favorable to the prevailing
party in district court. Cardenas, 9 F.3d at 1147. Of course,
deference is accorded the district court’s credibility
determinations. See United States v. Restrepo, 994 F.2d 173, 183
(5th Cir. 1993) (holding that, on appeal, court must give credence
to the credibility choices and findings of fact of the district
court); United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)
(“The district court’s ruling to deny the suppression motion should
be upheld if there is any reasonable view of the evidence to
support it.”)(internal citations and quotations omitted).
As discussed supra, during the suppression hearing, the court
heard testimony that Christopher Gonzales received a cut above his
eye and was taken to the hospital for treatment after an Officer
struck him as he dove for a firearm. Gonzales did not indicate any
concern or inquire about his brother’s condition before, during, or
after the interview with the ATF Agents, nor does Gonzales contend
otherwise. Accordingly, the district court determined: Gonzales
was advised of his Miranda rights and knowingly waived them; he did
not ask to speak with an attorney; and his statement was not the
product of threats or coercion. See Ornelas-Rodriguez, 12 F.3d at
1348 (upholding voluntariness of confession of defendant who
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witnessed co-defendant hit several times in elevator by law-
enforcement officials because confession took place several hours
after incident and defendant was not threatened for refusing to
confess). The district court did not clearly err in finding
Gonzales’ statement voluntary. (To the extent Gonzales seeks to
rely on his testimony at Christopher Gonzales’ sentencing hearing,
and although the district court took judicial notice of it, no
transcript of that testimony was included in the record on appeal.
In any event, such testimony could not be considered for our ruling
on the earlier decision to deny the suppression motion, especially
in the light of the court’s having then heard testimony.)
B.
Concerning the district court’s denying his motion to withdraw
his guilty plea, Gonzales contends: because he repudiated the
factual resume, the plea does not have a factual basis on which to
stand; and the district court incorrectly applied the below-
described Carr factors. A district court may permit withdrawal of
a guilty plea before a defendant is sentenced if the defendant
shows “any fair and just reason”. FED. R. CRIM. P. 11(d)(2)(B). On
the other hand, there is no absolute right to withdraw a guilty
plea. United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).
The denial of a motion to withdraw a guilty plea is reviewed for
abuse of discretion. Id.
1.
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In deciding whether denial of the withdrawal motion was an
abuse of discretion, this court, under United States v. Carr, 740
F.2d 339, 343-44 (5th Cir. 1984), “traditionally considers seven
relevant factors: (1) whether the defendant asserted his innocence,
(2) whether withdrawal would prejudice the government, (3) whether
the defendant delayed in filing the withdrawal motion, (4) whether
withdrawal would inconvenience the court, (5) whether adequate
assistance of counsel was available, (6) whether the plea was
knowing and voluntary, and (7) whether withdrawal would waste
judicial resources”. Grant, 117 F.3d at 789. No single factor
mandates a particular result; instead, the court makes its
determination based on the totality of the circumstances. United
States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
Regarding the Carr factors, the district court thoroughly
examined whether the plea was made knowingly and voluntarily. The
court noted: it went over the elements of each of the offenses
with Gonzales at his rearraignment and was told by him that each
was present in the case; Gonzales signed the factual resume,
attesting the factual basis for the plea was true and correct; it
carefully “interrogated” Gonzales to determine whether the plea was
made voluntarily; and the factual resume was read aloud, and
Gonzales assured the court it was correct. Gonzales’ open
pronouncement in court carried special weight; it is well
established that “[s]olemn declarations in open court carry a
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strong presumption of verity”. Blackledge v. Allison, 431 U.S. 63,
74 (1977). The district court found “no reasonable question that
can be raised at this time concerning [Gonzales’] guilt”. It also
noted: Gonzales had been represented by competent counsel, a
finding not contested by Gonzales; and a trial would waste judicial
resources.
The court adequately reviewed the Carr factors. Gonzales
fails to show an abuse of discretion. See Badger, 925 F.2d at 104.
2.
Along this line, Gonzales’ claim that his repudiation of the
factual resume invalidates his plea because it now has no factual
basis on which to stand is without merit. The district court, as
a finder of fact, determined the initial guilty plea was credible,
after hearing the testimony and observing Gonzales’ demeanor. See
Carr, 740 F.3d at 345; see also United States v. Pologruto, 914
F.2d 67, 70 (5th Cir. 1990) (“Credibility choices lie within the
province of the trier-of-fact.”)
C.
Gonzales next contests the district court’s refusing, at the
sentencing hearing, to allow his oral (new) objections to the
amended PSR. As discussed supra, the PSR had been amended after
Gonzales’ recantation at his brother’s sentencing.
Because Gonzales’ new objections were outside Federal Rule of
Criminal Procedure 32(f)(1)’s 14-day window, they were untimely.
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Under Rule 32(i)(l)(D), the district court has discretionary
authority to entertain untimely objections to the PSR “for good
cause”. Not permitting such untimely objections is reviewed for an
abuse of discretion. United States v. Chung, 261 F.3d 536, 538
(5th Cir. 2001).
Though Gonzeles’ counsel did not specify his new objections at
the sentencing hearing, he stated they centered around Gonzales’
repudiation of facts contained in the factual resume. (Nor does
Gonzales detail his desired objections in his brief on appeal.)
Gonzales’ objections to the PSR’s factual basis had been already
examined by the district court at the sentencing hearing when it
heard arguments on the guilty-plea-withdrawal motion; at that time,
the court ruled Gonzales’ new version of events was not credible.
Because the district court throughly covered these issues
previously, it did not abuse its discretion in denying the new,
oral objections to the PSR.
D.
Finally, Gonzales contends the district court erred by
sentencing him to a term of imprisonment greater than the
statutory-maximum ten-year term for possession of an unregistered
firearm. The legality of a criminal sentence is reviewed de novo.
United States v. Ortlieb, 274 F.3d 871, 879 (5th Cir. 2001).
Because Gonzales did not raise this issue in district court
however, we review only for plain error. FED. R. CRIM. P. 52(b).
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Under plain-error review, Gonzales must show a clear or obvious
error affected his substantial rights. E.g., United States v.
Castillo, 386 F.3d 632, 636 (5th Cir. 2004). “If [these]
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if ... the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631
(2002) (internal citations and quotations omitted).
Possession of an unregistered firearm carries a statutory-
maximum sentence of ten-years’ imprisonment. 26 U.S.C. § 5871.
(“Any person who [is convicted of possessing an unregistered
firearm] ... shall, upon conviction, ... be imprisoned not more
than ten years”). The district court, however, sentenced Gonzales
to concurrent terms of 188 months for the two unregistered-firearm
counts.
As the Government states, a sentence which exceeds the
statutory maximum is an illegal sentence, its imposition
constituting reversible plain error and mandating vacatur and
resentencing. Accordingly, the sentences as to counts one and two
are vacated and this matter remanded for resentencing on those
counts.
III.
For the foregoing reasons, Gonzales’ conviction is AFFIRMED;
the sentence as to count three, concerning § 924(c), is AFFIRMED,
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and, as to counts one and two, VACATED; and this matter is REMANDED
for resentencing consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART AND
VACATED IN PART; REMANDED FOR RESENTENCING
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