                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                  NOT PRECEDENTIAL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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