     Case: 14-40065      Document: 00512834705         Page: 1    Date Filed: 11/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40065
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 12, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GUSTAVO GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-279-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gustavo Gonzalez appeals his conviction for possession with intent to
distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), and his sentence of 240 months of imprisonment and 10 years of
supervised release.       He contends that there was insufficient evidence to
support his conviction; that his enhanced sentence was the result of
prosecutorial vindictiveness; and that the enhancement in 21 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 14-40065

§§ 841(b)(1)(A) and 851 is unconstitutional and, alternatively, that the
Government failed to prove that he warranted such an enhancement.
      As Gonzalez concedes, his claim of error that there was insufficient
evidence that he knew the type and quantity of drugs that he possessed is
foreclosed by our decision in United States v. Betancourt, 586 F.3d 303, 308-09
(5th Cir. 2009). We review Gonzalez’s remaining claims of error for plain error
because he failed to preserve them for appeal. See United States v. Salazar,
542 F.3d 139, 147 (5th Cir. 2008); United States v. Thomas, 991 F.2d 206, 215
(5th Cir. 1993). To show plain error, Gonzalez must show that the error was
clear or obvious and affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
      After Gonzalez elected to proceed to trial, the Government filed an
information and notice of enhancement alleging that Gonzalez was previously
convicted of a final felony drug offense and therefore subject to a 20-year
statutory minimum sentence. To prove actual vindictiveness, Gonzalez had to
“present objective evidence that the government acted solely to punish him for
exercising his legal rights, and that the reasons proffered by the government
are pretextual.” United States v. Saltzman, 537 F.3d 353, 364 (5th Cir. 2008).
The Government never stated that it was seeking the enhancement either to
influence or in response to Gonzalez’s election to proceed to trial. Contrary to
Gonzalez’s argument, the district court did not make an explicit finding of
actual vindictiveness given that the district court did not rule on the issue of
prosecutorial vindictiveness. The timing of the enhancement and the district
court’s observation that the Government has a practice of seeking the



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                                  No. 14-40065

enhancement when a defendant goes to trial do not demonstrate by a
preponderance of the evidence that the Government sought the enhancement
“solely” to punish Gonzalez for proceeding to trial. Id. There was no clear or
obvious error. See Olano, 507 U.S. at 734; United States v. Cooks, 52 F.3d 101,
105-06 (5th Cir. 1995).
      The presumption of vindictiveness applies when “there exists a realistic
likelihood of vindictiveness.” Saltzman, 537 F.3d at 359 (internal quotation
marks and citation omitted). The fact that the Government increased the
possible penalty against Gonzalez after he elected to proceed to trial is
insufficient to apply the presumption of vindictiveness. See United States v.
Goodwin, 457 U.S. 368, 381-84 (1982); Saltzman, 537 F.3d at 363; Cooks, 52
F.3d at 106. United States v. Meyer, 810 F.2d 1242, 1245-49 (D.C. Cir. 1987),
on which Gonzalez relies, is distinguishable. See Saltzman, 537 F.3d at 362-
63. There was no clear or obvious error. See Olano, 507 U.S. at 734.
      Regarding the constitutionality of the enhancement scheme of §§ 841
and 851, Gonzalez is unable to show a clear or obvious error on the question
whether the finality of the prior conviction is an issue beyond the fact of a prior
conviction.   See Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013);
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998); Olano, 507
U.S. at 734. Given the passage of nearly six years between the prior conviction
and the instant offense and the absence of evidence indicating that the prior
conviction is not final, Gonzalez has failed to show a clear or obvious error
regarding the finality of that conviction. See United States v. Andrade-Aguilar,
570 F.3d 213, 218 n.6 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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