UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8387
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN SIMON GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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(July 12, 1993)
Before GARWOOD, JONES and EMILIO M. GARZA Circuit Judges.
GARWOOD, Circuit Judge:
Appellant, Juan "John" Simon Gonzales (Gonzales), was
convicted, on his guilty plea pursuant to a plea agreement, of one
count of possession of a firearm by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced
Gonzales to a term of imprisonment of 120 months, a 3 year term of
supervised release, and imposed a $50,000 fine and a $50 special
assessment. Gonzales now appeals his sentence.
Facts and Proceedings Below
The evidence submitted in support of Gonzales's sentence
revealed the following. On February 28, 1991, Gonzales purchased
a .38 caliber Rossi Model 88 revolver (the Rossi) at a retail store
in Austin, Texas. In order to purchase the weapon, he falsified
the required ATF form by stating that he had never been convicted
of an offense punishable by a term of imprisonment of more than one
year.1 Gonzales gave the Rossi to his brother, Marcelo Gonzales
(Marcelo), who was not old enough to purchase a weapon. Gonzales
purchased the firearm for Marcelo because Marcelo had been
assaulted and could use the weapon for protection.
Between February 28 and March 5, 1991, someone stole a stereo
system from Marcelo's car. Gonzales, his stepbrother David
Madrigal (Madrigal), and Marcelo believed that the culprit was one
Robert Bettelyoun (Bettelyoun). Gonzales and Madrigal concocted a
plan to get back Marcelo's stereo and to teach Bettelyoun a lesson.
On March 5, 1991, they drove Marcelo to his apartment in order for
him to get the Rossi. The three brothers then waited at
Bettelyoun's residence for him to arrive. Around midnight,
Bettelyoun returned from work, and the three brothers kidnapped him
at gunpoint, and forced him into a car which Madrigal drove.
Marcelo sat in the front, and Gonzales and Bettelyoun sat in the
back. During the kidnapping, Madrigal carried a nickel-plated .380
pistol and Marcelo carried the Rossi.2
1
Gonzales had previously been convicted of the separate
offenses of burglary of a vehicle and aggravated assault with a
deadly weapon. Both offenses were felonies punishable by a term
of imprisonment of more than one year.
2
Madrigal also had a .22 with a 27-round clip in the backseat
of the car, and a .12-gauge shotgun in the trunk.
2
While driving, Madrigal relinquished his pistol to Gonzales
who leveled the gun barrel against Bettelyoun's forehead and told
him that he better reveal the whereabouts of Marcelo's stereo
system. Gonzales then took Bettelyoun's necklace, watch, and money
from his wallet. Madrigal drove for about thirty minutes before
pulling into a rest area. He and Marcelo exited the car, as
Gonzales, identified by Bettelyoun as "the big guy," interrogated
him about the location of the stereo system. Marcelo and Madrigal
then reentered the car, and were also questioning Bettelyoun, when
a highway patrolman drove up behind Madrigal's car. The officer
instructed the occupants to exit the car, and as Madrigal stepped
out from the vehicle, he shot and killed the officer. The three
brothers then returned Bettelyoun to his home. Madrigal sought to
flee to Mexico but he was apprehended the next day in San Antonio,
Texas, after a gun battle with a police officer.
On September 3, 1991, a grand jury returned a two-count
indictment against Gonzales for making a false statement in order
to purchase a firearm in violation of 18 U.S.C. §§ 922(a)(6),
924(a)(1)(B) (Count One); and with receipt of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(Count Two). Both counts concerned Gonzales's purchase of the
Rossi on February 28, 1991. On March 24, 1992, Gonzales entered
into a plea agreement whereby in return for entering a guilty plea
to Count Two, the government would dismiss Count One.
The probation officer then prepared the Presentence Report
(PSR), and computed Gonzales's sentence according to the sentencing
3
guidelines.3 The officer calculated Gonzales's base offense
initially from U.S.S.G. § 2K2.1 which is the guideline for receipt
of a firearm by a convicted felon. The officer then applied the
cross reference under section 2K2.1(c)(1) which requires the
application of section 2X1.1 if the firearm was used or possessed
in connection with the commission or attempted commission of
another offense. Section 2X1.1(a) mandates that the base offense
level is derived from "the guideline for the substantive offense,
plus any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty." Id.
Here, the probation officer determined that Gonzales's substantive
offense was kidnapping. Under section 2A4.1, the section covering
kidnapping, the base offense level is twenty-four. Using twenty-
four as a benchmark, the officer then included a two-level increase
for use of a dangerous weapon as provided for by section
2A4.1(b)(3). He then deducted one level since the kidnapped victim
was released within twenty-four hours as provided for in section
2A4.1(b)(4). The officer then applied section 3A1.2(b) which
provided a three-level enhancement if a law enforcement officer was
assaulted in a manner creating a substantial risk of serious bodily
injury. Finally, the officer gave Gonzales a two-level downward
adjustment for acceptance of responsibility under section 3E1.1(a).
Therefore, Gonzales's total offense level was twenty-six. With a
criminal history category of V, the sentencing range was 110-137
3
The applicable version of the sentencing guidelines is the
one in effect on July 10, 1992, the date on which Gonzales was
sentenced, 18 U.S.C. § 3553(a)(4), namely the 1991 edition of the
Federal Sentencing Guidelines Manual.
4
months.
Gonzales objected to the PSR, arguing that the probation
officer should not have used the cross reference to section 2X1.1;
that if this section were used, he should not have been charged
with a two-level increase for use of a deadly weapon per section
2A4.1(b)(3); and that he should not have received a three-level
increase for assaulting a law-enforcement officer per section
3A1.2(b). The district court overruled his objections, adopted the
PSR's recommendations, and sentenced Gonzales to 120 months, the
statutory maximum under 18 U.S.C. § 924(a)(2). The district court
also sentenced him to a three-year term of supervised release, and
imposed a $50,000 fine and a $50 special assessment. Gonzales now
appeals his sentence.
Discussion
Gonzales raises basically the same three issues on appeal as
he did below. First, he complains that the district court
improperly applied the cross reference section 2K2.1(c)(1). Also,
Gonzales argues that the district court improperly enhanced his
base offense level for assaulting a law enforcement official under
section 3A1.2(b). Finally, Gonzales argues that he was placed in
double jeopardy when the district court enhanced his base offense
level for use of a deadly weapon during the kidnapping.
Gonzales's complaints are based on the district court's
allegedly improper application of the sentencing guidelines. This
court will "uphold the district court's sentence so long as it
results from a correct application of the guidelines to factual
findings which are not clearly erroneous." United States v.
5
Sarasti, 869 F.2d 805, 806 (5th Cir. 1989); see 18 U.S.C. §
3742(e)(2). We review de novo the district court's legal
conclusions with respect to the guidelines. Id.; United States v.
Suarez, 911 F.2d 1016, 1018 (5th Cir. 1990).
A. Cross Reference Section 2K2.1(c)(1) and Relevant Conduct
Gonzales first argues that his base offense level should not
have been calculated from the guideline concerning the offense of
aggravated kidnapping but from the guideline for the offense with
which he was chargedSQreceipt of a weapon by a convicted felon.4
He contends that the cross reference in section 2K2.1(c)(1) to
section 2X1.1 is limited by section 1B1.3(a) concerning the general
definition of relevant conduct. According to Gonzales, section
1B1.3(a) dictates that a cross reference can be used only for acts
committed during, or reasonably foreseeable to, the offense of
conviction.5 Therefore, because the receipt of the Rossi and the
kidnapping were not part of the same scheme or plan, and the Rossi
4
Under the guideline for the receipt of a firearm by a
convicted felon, without cross referencing to any other
guideline, the base offense level is twelve. U.S.S.G. §
2K2.1(a)(7). This application would result in a significantly
shorter sentence than the one assessed.
5
Section 1B1.3(a) provides in pertinent part that:
"Unless otherwise specified . . . cross references in
Chapter Two . . . shall be determined on the basis of
the following:
(1) all acts and omissions committed or
aided and abetted by the defendant, or for
which the defendant would be otherwise
accountable, that occurred during the
commission of the offense of conviction . . .
." Id.
6
was purchased with no intent for it to be used in the latter
offense, the presence of the Rossi during the aggravated kidnapping
was merely "fortuitous" and not foreseeable.
We agree that the aggravated kidnapping was not relevant
conduct in connection with Gonzales's charged offense of receipt of
the Rossi. However, we disagree with the assertion that in this
case section 1B1.3 restricts the application of section
2K2.1(c)(1).
Section 1B1.3 applies to cross references in Chapter Two
"[u]nless otherwise specified." U.S.S.G. § 1B1.3(a). "Since §
1B1.3(a) requires that relevant conduct be applied to determine
cross references 'unless otherwise specified,' we must decide
whether this cross reference requires the application of relevant
conduct or specifies otherwise." United States v. Jennings, 991
F.2d 725, -- (11th Cir. 1993). Section 2K2.1(c)(1) provides in
pertinent part:
"If the defendant used or possessed any firearm or
ammunition in connection with the commission or attempted
commission of another offense, or possessed or
transferred a firearm or ammunition with knowledge or
intent that it would be used or possessed in connection
with another offense, applySQ
(A) § 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other offense,
if the resulting offense level is greater than
that determined above . . . ." Id.
The language of section 2K2.1(c)(1) in no way suggests that it is
limited to the offenses that the defendant intended to commit upon
receipt or possession of the particular weapon in the charged
offense. Rather, the broad language of section 2K2.1(c)(1),
particularly its unlimited references to "another offense,"
7
indicates that it is not restricted to offenses which would be
relevant conduct but embraces all illegal conduct performed or
intended by defendant concerning a firearm involved in the charged
offense.6 Therefore, the district court did not err in applying
section 2K2.1(c)(1) irrespective of the relevant conduct strictures
6
We note that section 2K2.1(c)(1) literally includes not only
offenses in which the firearms specified in the charged offense
were used or possessed, but "any" weapons used or possessed in
the other offenses. Id. It appears to us that these firearms
must at least be related to those in the charged offense. If the
word "any" were read literally, section 2K2.1(c)(1) would apply
even though the weapon involved in the other offense had
absolutely no relation to that specified in the charged offense.
Such a reading would have section 2K2.1(c)(1) apply, for example,
to a weapon used by the defendant in a robbery committed months
before he ever acquired the weapon specified in the offense of
conviction. The overall context of section 2K2.1, however,
militates against such an expansive reading of "any firearm."
Thus, section 2K2.1(b)(4), which provides for a two level
increase if "any firearm was stolen," obviously is not intended
to apply to firearms wholly unrelated to the charged offense. We
do not suggest that the "firearm" referenced in section
2K2.1(c)(1) would not include a firearm which though not
specified in the count of conviction was nevertheless part of its
relevant conduct. However, we need not (and do not) decide these
questions because the district court here specifically found that
Gonzales possessed the Rossi in the kidnapping and Gonzales does
not challenge this finding on appeal.
The district court noted that although Marcelo held the
Rossi during the kidnapping and Gonzales never touched it, the
gun was only a foot and a half away from Gonzales, and was
therefore within his easy reach during the offense, and was
constructively possessed by him. The evidence also showed
Gonzales was the leader of the group. We would further add that
the district court's finding was not erroneous because the
undisputed facts show that Gonzales, Madrigal, and Marcelo acted
together as co-conspirators in the kidnapping; and Marcelo's
possession of the Rossi is thus imputed to Gonzales. See United
States v. Pinkerton, 66 S.Ct. 1180 (1946); United States v.
Elwood, No. 92-3235, 1993 WL 195348, at *4 (5th Cir. June 9,
1993) (upholding determination that defendant was liable as a co-
conspirator for the possession/use of firearms by other co-
conspirators).
8
contained in section 1B1.3.7
B. Enhancement for Assault of a Law Enforcement Official
Gonzales contends that even if the aggravated kidnapping
guideline is the proper one for calculating his base offense level,
he still should not have been given a three-level increase under
section 3A1.2(b) for assaulting a law enforcement official in a
manner creating a substantial risk of serious bodily injury.8 He
contends, in a slight variation from his first argument, that the
provisions of Chapter Three of the guidelines are subject to the
relevant conduct restrictions of section 1B1.3. Gonzales rightly
points out that section 3A1.2(b) is applicable only if the harm to
the law enforcement official occurred "during the course of the
offense." Id. Gonzales contends that the "offense" referred to is
the offense of conviction and since the kidnapping was not related
to the receipt of the Rossi, the assault of the police officer
covered in section 3A1.2(b) does not concern relevant conduct.
We agree that section 3A1.2(b) is subject to the relevant
conduct restrictions of section 1B1.3. See United States v.
Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992) (holding "that
7
Such an application results in a higher offense level, but
this is exactly what the guidelines intended. United States v.
Pologruto, 914 F.2d 67, 70 (5th Cir. 1990).
8
Section 3A1.2(b) provides for a three-level increase if:
"during the course of the offense or immediate flight
therefrom, the defendant or a person for whose conduct
the defendant is otherwise accountable, knowing or
having reasonable cause to believe that a person was a
law enforcement or corrections officer, assaulted such
officer in a manner creating a substantial risk of
serious bodily injury." Id.
9
adjustments for the victim's status are to be determined on the
basis of all relevant conduct, as defined in U.S.S.G. § 1B1.3").
However, the "offense" referred to in section 3A1.2(b) refers to
the base level offense used in calculating the defendant's
sentence, and not necessarily the charged offense. See United
States v. Padilla, 961 F.2d 322, 326-27 (2d Cir. 1992) (upholding
the application of section 3A1.2(b) to the base level offense
calculated from a cross reference, which was not the charged
offense). Only if the charged offense and the base level offense
are one and the same will a section 3A1.2(b) adjustment be assessed
based on the relevant conduct surrounding the charged offense.
Here, the base level offense was aggravated kidnapping so section
1B1.3 applies to the relevant conduct concerning the kidnapping.
Gonzales also argues that the death of the law enforcement
official was not relevant conduct surrounding the aggravated
kidnapping either because Madrigal's shooting of the officer was an
"independent impulse" and was therefore not a reasonably
foreseeable consequence of the kidnapping. However, the commentary
to section 1B1.3 describes as relevant conduct for which the
defendant is accountable a situation where a getaway driver in an
armed bank robbery in which a teller is injured is convicted of the
robbery only and yet "is accountable for the injury inflicted
because he participated in concerted criminal conduct that he could
reasonably foresee might result in the infliction of injury."
U.S.S.G. § 1B1.3, comment. (n.1b). Here, the circumstances clearly
demonstrate that injury to another person might well occur.
Gonzales participated in the concerted criminal conduct of an
10
aggravated kidnapping, during which the victim was kidnapped at
gunpoint and repeatedly threatened, and Gonzales himself threatened
the victim with a gun. As with the driver in the foregoing
example, although Gonzales did not cause the injury, the district
court could properly find that it was reasonably foreseeable from
the circumstances surrounding the offense that such an injury might
well occur. Therefore, the district court did not err in applying
section 3A1.2(b) to the base level offense of aggravated
kidnapping.
C. Double Jeopardy
Finally, Gonzales argues that the district court should not
have enhanced his base offense level under section 2A4.1(b)(3)
because such an application violated the double jeopardy clause of
the Fifth Amendment. He contends that by invoking the cross
reference under section 2K2.1(c)(1), he was penalized for
possessing a firearm during the kidnapping because his base offense
level was increased from level twelve for the original charged
offense of receipt of a firearm to level twenty-four for
kidnapping. He argues that to increase his base offense level
again by two levels under section 2A4.1(b)(3) for using a dangerous
weapon during the kidnapping would amount to double counting.
We first note that even assuming that the application of the
sentencing guidelines in this case could be accurately
characterized as double counting, such an application would not
necessarily violate the double jeopardy clause. Here there was a
single prosecution, and in such a case, at least if the sentence is
within the legislatively intended limits, "cumulative punishment is
11
always consistent with the double jeopardy clause, provided there
is but a single trial." United States v. Masters, 978 F.2d 281,
285 (7th Cir. 1992) (Easterbrook, J.) (citing to Missouri v.
Hunter, 103 S.Ct. 673 (1983); Albernaz v. United States, 101 S.Ct.
1137, 1144-45 (1981)).
The application of the guidelines here do not result in
impermissible double counting. Not all double counting is
prohibited by the guidelines. See United States v. Patterson, 947
F.2d 635, 637 (2nd Cir. 1991); United States v. Rocha, 916 F.2d
219, 243 (5th Cir. 1990). In Rocha, the defendants claimed that
the district court had erred in increasing their base offense level
for kidnapping by both the enhancement for a ransom demand and for
the offense of extortion. They asserted that these two increases
involved the same conduct and to apply both of them would result in
double counting. Id. at 242-43. We rejected this contention
noting that "the Sentencing Guidelines are explicit when double
counting is forbidden." Id. at 243. Therefore, under the rule of
statutory construction that "[t]he expression of one thing is the
exclusion of another," we held that only if the guideline in
question expressly forbids double counting, would such double
counting be impermissible. Id. n.35. We then found that "there
are no exceptions in section 2A4.1 to the enhancement of a
defendant's base offense level for a ransom demand when the
defendant's base offense level is enhanced for the facilitation of
extortion, even if both specific offense characteristics involve
the same conduct. We must presume therefore that the Sentencing
Commission intended that a defendant's base offense level could be
12
enhanced under section 2A4.1 both for a ransom demand and again for
the offense of extortion." Id. at 244. Similarly, here the
sentencing guidelines do not expressly forbid the enhancement of
Gonzales's base offense level for use of a weapon when his base
offense level has already been enhanced for possessing a weapon in
the commission of an offense. Therefore, the district court did
not err in applying section 2A4.1(b)(3) after it had already
applied section 2K2.1(c)(1) for essentially the same conduct. See
United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (holding
that a court may enhance a defendant's sentence under more than one
guideline section or subsection even though the two enhancements
are for essentially the same conduct).
Conclusion
Gonzales has failed to show any reversible error was committed
by the district court below. Accordingly his conviction is
AFFIRMED.
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