                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2002

USA v. Gomez
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1217




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"USA v. Gomez" (2002). 2002 Decisions. Paper 408.
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                                               NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                         No. 01-1217



                   UNITED STATES OF AMERICA

                              v.

                        ALONZO GOMEZ,

                                   Appellant



     ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                   THE DISTRICT OF DELAWARE

                (Dist. Court No. 99-cr-00077)
            District Court Judge: Gregory M. Sleet



          Submitted Under Third Circuit LAR 34.1(a)
                        June 25, 2002

       Before: ALITO, AMBRO, and GARTH, Circuit Judges.

                (Opinion Filed: July 17, 2002)



                     OPINION OF THE COURT



PER CURIAM:
     Alonzo Gomez was stopped by Delaware Police officers who searched his car
pursuant to the driver’s consent and found over seven kilograms of cocaine. Gomez was
convicted for possession of cocaine with the intent to distribute. The Pre-Sentence Report
("PSR") determined that no guideline adjustments for Gomez’s role in the offense should
apply. The District Court accepted the factual findings of the PSR and, on January 8,
2001, sentenced Gomez to 78 months of incarceration. As the parties are well aware of
the history of these proceedings and the facts involved, we need not repeat them here.
     Gomez raises two issues on appeal: (1) whether the District Court properly denied
Gomez’s motion for a minor role adjustment, and (2) whether Gomez’s trial counsel was
ineffective for failing to argue for a downward departure pursuant to Section 5K2.20
(Aberrant Behavior) of the United States Sentencing Guidelines ("Guidelines").
     We exercise plenary review where the district court’s denial of a downward
adjustment is based on a legal interpretation of the Sentencing Guidelines. United States
v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). Where the district court’s decision rests on
factual determinations, we review for clear error. Id. Here, the District Court denied
Gomez’s application for a minor role adjustment on the facts, and thus the appropriate
standard of review is clear error.
     Additionally, ineffective assistance of counsel claims are not generally entertained
on direct appeal. United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). We have
held repeatedly, except in limited circumstances, that the proper avenue for pursuing such
claims is through a collateral proceeding in which the factual basis for the claim may be
developed. Id. However, where the record is sufficient to allow a determination of
ineffective assistance of counsel, an evidentiary hearing to develop the facts may not be
needed. Id.
     First, Gomez fails to satisfy the requirements for a minor role adjustment. Section
3B1.2 of the Guidelines permits a reduction in the offense level by two if the defendant
was a minor participant in the criminal activity. To receive such an adjustment, a
defendant must show that (1) there were multiple participants in committing the crime,
and (2) the defendant was among the least culpable of the participants. See United States
v. Isaza-Zapata, 148 F.3d 236, 238-39 (3d Cir. 1998).
     Regarding the second prerequisite of relative culpability, to assess a defendant’s
culpability as a courier in relation to the other participants, we consider factors such as th
nature of the defendant’s relationship to the other participants, the importance of the
defendant’s actions to the success of the venture, and the defendant’s awareness of the
nature and scope of the criminal enterprise. Headley, 923 F.2d at 1084. The defendant
bears the burden of demonstrating that the minor role adjustment should apply. Isaza-
Zapata, 148 F.3d at 240. Moreover, district courts are allowed broad discretion in
applying Section 3B1.2. Id. at 238.
     Here, there were multiple participants, so Gomez meets the first prerequisite for
application of Section 3B1.2. Gomez fails to establish, however, the second prerequisite
that he was among the least culpable participants according to the aforementioned three
factors as stated in Headley. The record does not indicate the extent of Gomez’s
relationship with the other participants. Thus, no conclusion can be drawn concerning
this factor. Moreover, Gomez cannot show that his actions were not essential to the
success of the venture. To the contrary, Gomez owned the car with the secret
compartment that stored the cocaine, and he agreed to drive the cocaine from New York
to Washington, D.C. Finally, Gomez fails to show that he did not understand the nature
and scope of the criminal enterprise of which his role as carrier was one part. The record
indicates that Gomez knew that he was delivering drugs and not jewelry. Moreover,
Gomez did not establish that his role in the operation was limited to transporting a small
amount of drugs in a single transaction.
     The District Court considered both parties’ arguments and rejected Gomez’s
objection to the PSR. Because Gomez failed to carry his burden of showing that his
culpability was less than that of the other participants in the criminal endeavor, the
District Court did not erroneously deny his request for a minor role adjustment.
     Second, ineffective assistance of counsel claims are not generally entertained on
direct appeal. Headley, 923 F.2d at 1083. We have held repeatedly that the proper
avenue for pursuing such claims is through a collateral proceeding in which the factual
basis for the claim may be developed. Id. However, where the record is sufficient to
allow a determination of ineffective assistance of counsel, an evidentiary hearing to
develop the facts is not needed. Id.
     The record here does not contain enough information for a judgement on the trial
counsel’s performance.
     For the foregoing reasons, we affirm the District Court’s order denying Gomez’s
claim for a minor role adjustment and decline to consider Gomez’s ineffective assistance
of counsel claim.
