United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FILED
March 22, 2007
Charles R. Fulbruge III
No. 06-10460 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE GONZALEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CR-12-1
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Guadalupe Gonzalez, Jr., pleaded guilty to conspiring to
distribute and possess with intent to distribute 500 grams or
more of cocaine and to carrying and possessing a firearm in
relation to a drug trafficking crime. He was sentenced to a 135-
month term of imprisonment on the conspiracy count and to a
consecutive five-year term for his violation of 18 U.S.C.
§ 924(c).
For the first time on appeal, Gonzalez argues that his
convictions should be overturned because the magistrate judge
*
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this opinion should not be published and is not precedent except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.
No. 06-10460
-2-
erred under FED. R. CRIM. P. 11 by incorrectly admonishing him
regarding the penalties associated with the counts set forth in
the indictment. Because Gonzalez failed to raise a Rule 11
objection in the district court, our review is for plain error.
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
To establish plain error, Gonzalez “has the burden to show
(1) there is an error, (2) that is clear and obvious, and (3)
that affects his substantial rights.” Id. If these factors are
established, the decision to correct the forfeited error still
lies within the court’s sound discretion, which this court will
not exercise unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. A
reviewing court may consult the entire record when determining
the effect of any error on substantial rights. United States v.
Vonn, 535 U.S. 55, 58-59 (2002).
At rearraignment, the magistrate judge incorrectly
admonished Gonzalez regarding the penalties associated with the
conspiracy count. However, Gonzalez’s written plea agreement,
which he signed, correctly states the applicable maximum and
mandatory minimum sentences. In view of the entire record,
Gonzalez fails to show that, but for the error at rearraignment,
he would not have entered a guilty plea. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); Vonn, 535 U.S. at 58-
59.
No. 06-10460
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Gonzalez argues that the district court erred in enhancing
his sentence on the conspiracy count by two levels for his role
in the offense. He contends that the enhancement, which was
imposed because he recruited an individual who had a permit to
carry a handgun, violates U.S.S.G. § 2K2.4 and results in
impermissible double counting because he was also sentenced for
violating § 924(c). Because Gonzalez did not object to the
enhancement on the grounds raised on appeal, our review is for
plain error. See United States v. Cabral-Castillo, 35 F.3d 182,
188-89 (5th Cir. 1994).
“Double counting is impermissible only where the guidelines
at issue prohibit it.” United States v. Gaytan, 74 F.3d 545, 560
(5th Cir. 1996). The text of § 2K2.4 and its commentary does not
prohibit application of a role enhancement where the defendant is
also convicted of violating § 924(c), and Gonzalez has pointed to
no case law that would support such an interpretation. Gonzalez
has failed to establish plain error. See Cabral-Castillo, 35
F.3d at 188-89.
Gonzalez argues that the district court erred in overruling
his objection to the inclusion of information regarding three
cocaine transactions totaling 10 kilograms in determining the
quantity of drugs for which he was held responsible. He asserts
that he provided information on these transactions after entering
into a cooperation agreement under U.S.S.G. § 1B1.8(a).
No. 06-10460
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Credibility determinations in a sentencing hearing “are
peculiarly within the province of the trier-of-fact.” United
States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). As
Gonzalez acknowledges, the district court implicitly determined,
that information on the three transactions was disclosed prior to
the formation of a cooperation agreement, a finding consistent
with testimony given at sentencing by law enforcement officers
who interviewed Gonzalez. We conclude that the district court
did not reversibly err in overruling Gonzalez’s objection to the
inclusion of information revealed by him regarding these three
transactions in calculating the applicable guideline range. See
United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998);
Sarasti, 869 F.2d at 806.
AFFIRMED.