United States v. Jose Gonzalez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOSE LUIS CORTES GONZALEZ, a/k/a Luis,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:07-cr-00063-GEC-JGW-4)

Submitted: June 14, 2013 Decided: June 25, 2013

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Jean Barrett Hudson, Assistant United
States Attorney, Charlottesville, Virginia; Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jose Luis Cortes Gonzalez (“Gonzalez”) pled guilty to

conspiracy to manufacture, distribute, and possess with intent

to distribute more than five kilograms of cocaine, more than

fifty grams of cocaine base, and more than fifty grams of

methamphetamine, in violation of 21 U.S.C. § 846 (2006)

(count one), and using and carrying a firearm during or in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2006) (count sixty-nine), and was sentenced to 120

months’ imprisonment on count one and a consecutive term of

sixty months’ imprisonment on count sixty-nine. Gonzalez

appealed, and we vacated his conviction and sentence on count

sixty-nine, affirmed his conviction on count one, vacated his

sentence on count one, and twice remanded for resentencing on

that count.

On remand, the district court calculated Gonzalez’

Guidelines range under the U.S. Sentencing Guidelines Manual

(“USSG”) at 120 to 135 months’ imprisonment and sentenced

Gonzalez to 120 months’ imprisonment. On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating there are no meritorious issues for appeal, but

questioning whether the district court abused its discretion in

imposing sentence. Gonzalez has filed two pro se supplemental

briefs raising several issues. We affirm.

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We review the sentence imposed by the district court

for reasonableness under an abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 41, 51 (2007). This review

entails appellate consideration of both the procedural and

substantive reasonableness of a sentence. Id. at 51.

A sentence imposed within the properly calculated Guidelines

range is presumed reasonable by this court. United States v.

Mendoza–Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a

presumption is rebutted only by showing “that the sentence is

unreasonable when measured against the [18 U.S.C.] § 3553(a)

[(2006)] factors.” United States v. Montes–Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

Counsel and Gonzalez both question whether the

district court erred in applying the two-level enhancement under

USSG § 2D1.1(b)(1) and, if so, whether it properly declined to

apply the “safety valve” provisions of USSG § 5C1.2 and

18 U.S.C. § 3553(e)-(f). Under USSG § 2D1.1(b)(1), a two-level

increase in a defendant’s offense level is warranted “[i]f a

dangerous weapon (including a firearm) was possessed.”

The enhancement is proper when the weapon at issue “was

possessed in connection with drug activity that was part of the

same course of conduct or common scheme as the offense of

conviction,” United States v. Manigan, 592 F.3d 621, 628-29

(4th Cir. 2010) (internal quotation marks omitted), even in the

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absence of “proof of precisely concurrent acts, for example, gun

in hand while in the act of storing drugs, drugs in hand while

in the act of retrieving a gun.” United States v. Harris,

128 F.3d 850, 852 (4th Cir. 1997) (internal quotation marks

omitted). The defendant bears the burden to show that a

connection between his possession of a firearm and his narcotics

offense is “clearly improbable.” Id. at 852-53.

We conclude after review of the record that Gonzalez

has not met this burden. Gonzalez admitted at the guilty plea

hearing to participating in a conspiracy to distribute cocaine

and that he possessed a firearm to protect himself from being

robbed of drugs he was possessing and distributing as part of

the conspiracy. At resentencing on remand, Gonzalez did not

point to any evidence to suggest that the connection between the

firearm and his narcotics offense was “clearly improbable,” and

this failing continues on appeal.

Next, because Gonzalez possessed a firearm in

connection with his offense, the district court properly

declined to apply the safety valve reduction. USSG § 5C1.2(a)

(allowing application of the safety valve only if the defendant

“did not use violence or credible threats of violence or possess

a firearm or other dangerous weapon . . . in connection with the

offense”). We thus discern no error in the district court’s

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enhancement of Gonzalez’ offense level under USSG § 2D1.1(b)(1)

and its decision not to apply the safety valve reduction.

Additionally, in accordance with Anders, we have

reviewed the remainder of the record and the remainder of

Gonzalez’ pro se supplemental briefs and have found no

meritorious issues for review. We therefore affirm the district

court’s amended judgment. This court requires that counsel

inform Gonzalez, in writing, of the right to petition the

Supreme Court of the United States for further review.

If Gonzalez requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel

may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Gonzalez.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED