                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3369




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                                                             NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-3369

                           UNITED STATES OF AMERICA

                                            v.

                              FAUSTINO GONZALEZ,
                                      Appellant


                    On Appeal from the United States District Court
                          For the Middle District of Pennsylvania
                   District Judge: The Honorable William W. Caldwell
                             District Court No.: 02-cr-00261-07


                             Argued March 31, 2006
       Before: SMITH and COWEN, Circuit Judges, and ACKERMAN, District Judge 1

                                (Filed: April 26, 2006)

DENNIS E. BOYLE (ARGUED)
1525 Cedar Cliff Drive
Camp Hill, PA 17011
Attorney for Appellant

WILLIAM A. BEHE (ARGUED)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, Pennsylvania 17108
Attorneys for Appellee



   1
    The Honorable Harold A. Ackerman, Senior District Judge for the District of New
Jersey, sitting by designation.
                                OPINION OF THE COURT

ACKERMAN, Senior District Judge.

       Appellant Faustino Gonzalez challenges the sentence imposed by the District

Court after Gonzalez pleaded guilty to two counts of interstate travel in aid of

racketeering (specifically, drug trafficking), in violation of 18 U.S.C. § 1952(a)(3).

Gonzalez argues that: 1) the district court’s calculation of the amount of heroin involved

(which calculation was contained in the Presentence Investigation Report (“PSR”)

prepared by the Probation Department) was incorrect and overstated, inasmuch as it made

Gonzalez responsible not only for the amounts of heroin that Gonzalez himself traveled

interstate to acquire, but also included significant amounts purchased, distributed or sold

by other members of the drug-trafficking enterprise; 2) Gonzalez was incarcerated for

much of the time period in which the PSR alleged he had been purchasing, distributing or

selling drugs, and thus could not have participated in the transactions ascribed to him by

the PSR for those time periods when he was incarcerated; and 3) inasmuch as the District

Court accepted the PSR’s calculation of the quantities of heroin implicated by Gonzalez’s

actions in furtherance of the racketeering enterprise, including quantities attributable to

the actions of other members of the drug trafficking enterprise, Gonzalez is entitled to a

reduction in sentence because he was a “minimal participant” in the drug-trafficking

activities alleged.

                                              I



                                              2
       Gonzalez was initially charged with distribution and possession with the intent to

distribute one kilogram or more of heroin, and conspiracy to distribute and possess with

the intent to distribute one kilogram or more of heroin, pursuant to a multi-count, multi-

defendant Indictment filed against Gonzalez and several other defendants. Gonzalez pled

guilty to a two-count Superseding Information, and admitted to making two trips from his

home in York, Pennsylvania to New York City to facilitate the drug trafficking activities

of his brother, Luis “Danny” Rivera 2 . No specific quantities of drugs were admitted by

Gonzalez in connection with these two trips.

       Prior to and at sentencing, Gonzalez objected to most of the assertions of the PSR,

with the exception of Paragraph 8, which described Gonzalez’s admissions regarding his

own drug purchasing and distribution activities. In particular, Gonzalez objected to

Paragraph 16 of the PSR which described the drug distribution activities of Gonzalez and

others alleged by Gonzalez’s brother, Luis Rivera. Paragraph 16 utilized these allegations

as a basis for calculating the quantity of heroin relevant to Gonzalez’s offense conduct.

Based on these allegations, the PSR concluded that Gonzalez was “involved with”

approximately two kilograms of heroin, and established Gonzalez’s base offense level at

32, under the then-mandatory United States Sentencing Guidelines.

       At sentencing, the Government did not offer any witnesses to assist the court in

resolving the disputed allegations regarding Gonzalez’s alleged drug purchasing and

   2
    Luis Rivera was charged and prosecuted in separate proceedings. In November
2003, Rivera was sentenced to 137 months imprisonment for distribution of heroin.

                                             3
distribution activities, as claimed by Luis Rivera and reported in the PSR. The District

Court, recognizing the inherent factual dispute, attempted to limit its sentencing analysis

to consider only the conduct actually admitted by Gonzalez. The District Court adopted

the PSR’s estimate of approximately 2 kilograms as the quantity of heroin involved,

relying upon the statement of the prosecutor that the activities actually admitted by

Gonzalez implicated an amount of heroin equivalent to the PSR’s estimate of

approximately two kilograms of heroin. However, the PSR’s drug quantity calculation

was not based upon any conduct admitted by Gonzalez, but rather was based solely upon

Luis Rivera’s unproven allegations of the drug distribution conduct of Gonzalez and

others.

          The District Court granted Gonzalez a two-level reduction for acceptance of

responsibility, but rejected Gonzalez’s request for a reduction for “minimal participant”

status pursuant to Section 3B1.2 of the Guidelines. The District Court reasoned that

Gonzalez was not entitled to consideration for minimal participant status as a matter of

law, because Gonzalez had not been charged with a conspiracy crime. The District Court

sentenced Gonzalez to a total of 120 months incarceration, imposing consecutive terms of

60 months for each of the two interstate travel offenses. Gonzalez appealed the sentence,

raising the same issues that he had identified at the sentencing hearing, and also appealing

the consecutive nature of the terms of incarceration. This Court vacated the judgment and

remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005),



                                              4
holding that the sentencing issues Gonzalez raised would be “best determined by the

District Court in the first instance,” but confirming that the District Court was within its

discretion to impose a consecutive term of imprisonment.

       At the resentencing hearing, Gonzalez was sentenced to a total term of

imprisonment of 108 months, one year less than had been previously imposed. The

sentence consisted of one 60-month term, and a consecutive 48-month term, for the two

interstate travel offenses. Gonzalez timely filed this appeal, in which he reiterates his

challenges to the District Court’s calculation of the amount of heroin involved and the

scope of the relevant “related conduct” for that analysis, as well as his challenge to the

District Court’s denial of any adjustment for “minimal participant” status. We will

vacate the judgment of sentence and remand for further proceedings consistent with this

opinion.1

                                              II

       Gonzalez asserts that the District Court erroneously adopted the PSR’s overstated

calculation of the amount of heroin involved, and consequently established an improperly

high base offense level for sentencing. We review for clear error the District Court’s

   1
     We have jurisdiction to review Gonzalez’s conviction under 28 U.S.C. § 1291. We
have jurisdiction to review Gonzalez’s sentence for unreasonableness under 18 U.S.C. §
3742(a)(1). United States v. Booker, 543 U.S. 220, 260 (2005) (holding that §§ 3742 (a)
and (b) “continue[] to provide for appeals from sentencing decisions (irrespective of
whether the trial judge sentences within or outside the Guidelines range in the exercise of
his discretionary power under § 3553(a))”); United States v. Cooper, 437 F.3d 324, 326
(3d Cir. 2006) (holding that an unreasonable sentence is “imposed in violation of law”
under 18 U.S.C. § 3742(a)(1)”).

                                              5
findings of fact in support of the sentence. United States v. Holman, 168 F.3d 655, 660

(3d Cir. 1999); United States v. Hillstrom, 988 F.2d 448, 450 (3d Cir. 1993). Under the

clear error standard, “factual findings are clearly erroneous if the findings are

unsupported by substantial evidence, lack adequate evidentiary support in the record, are

against the clear weight of the evidence or where the District Court has misapprehended

the weight of the evidence.” United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997)

(quoting Davin v. DOJ, 60 F.3d 1043, 1049 (3d Cir. 1995)).

       In establishing the base offense level for sentencing based on a calculation of drug

quantity, the Government bears the burden of proof by a preponderance of the evidence.

United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993). At sentencing, the District

Court recognized that Gonzalez had objected to the PSR’s calculation that the amount of

heroin involved constituted approximately two kilograms, because that calculation was

premised on conduct that had not been admitted by Gonzalez, had not been supported by

any witness testimony at the hearing, and further included drug amounts attributable to

the actions of members of the drug trafficking enterprise.

       Unfortunately, the learned court was led astray by the prosecutor’s insistence that

the amount of heroin calculated by the PSR was equivalent to the amount implicated by

Gonzalez’s admitted conduct. Significantly, Gonzalez’s admissions do not reflect an

amount of heroin that is easily measured in grams; rather, the admissions describe

transactions in “bundles” of heroin. No testimony or evidence in the prosecution’s case



                                              6
served to establish the nature of a “bundle” of heroin, and thus the Government had not

carried its burden of proof regarding drug quantity.2 Accordingly, the District Court’s

erroneous conclusion, abetted by the misstatement of the prosecutor, that the conduct

admitted by Gonzalez implicated an amount equivalent to almost two kilograms of

heroin, was not supported by the evidence before the court. Accordingly, we will vacate

the judgment and remand to the District Court for further proceedings regarding the

amount of heroin implicated by Gonzalez’s conduct, and any other relevant conduct for

which Gonzalez is accountable.3

                                             III

       With regard to Gonzalez’s contention that he was erroneously denied consideration

for a reduction in sentence as a “minimal participant” under U.S.S.G. § 3B1.2., we note

that the District Court refused to consider Gonzalez’s eligibility as a “minimal

participant” as a matter of law, because Gonzalez had not been charged with a conspiracy

crime. Because the District Court framed its decision as a legal, rather than factual,



   2
     At oral argument, the attorney for the Government conceded that the prosecutor at
sentencing had not presented the District Court with a correct analysis of the quantity of
heroin involved. We comment the attorney for the Government for his candor.
   3
      We expect that upon remand for further proceedings regarding the amount of heroin
implicated by Gonzalez’s conduct, the District Court will address Gonzalez’s contention
that Luis Rivera’s allegations regarding Gonzalez’s alleged drug distribution activities are
unreliable because Gonzalez claims he was incarcerated for some of the time periods
during which Rivera claims Gonzalez was purchasing or distributing drugs. We also
expect that the District Court will address the Government’s argument that Gonzalez may
be held accountable for the drug distribution activities of the conspiracy.

                                             7
matter, we exercise plenary review. United States v. Bernard, 373 F.3d 339, 341 (3d Cir.

2004). Moreover, plenary review is appropriate because the District Court’s decision

constitutes an interpretation of the Guidelines. United States v. Bernard, 373 F.3d 339,

341 (3d Cir. 2004).

       Section 3B1.2 of the Guidelines, entitled “Mitigating Role,” provides:

              Based on the defendant’s role in the offense, decrease the
              offense level as follows:

              (a)     If the defendant was a minimal participant in any criminal
                      activity, decrease by 4 levels.

              (b)     If the defendant was a minor participant in any criminal
                      activity, decrease by 2 levels.

              In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2. The commentary to that section indicates that a mitigating role

adjustment is “not applicable unless more than one participant was involved in the

offense.” Id. at Application Note 2. “Accordingly, an adjustment under this guideline

may not apply to a defendant who is the only defendant convicted of an offense unless

that offense involved other participants in addition to the defendant.” Id. The application

notes offer further guidance for the implementation of this adjustment guideline:

                     A defendant who is accountable under §1B1.3 (Relevant
              Conduct) only for the conduct in which the defendant personally
              was involved and who performs a limited function in concerted
              criminal activity is not precluded from consideration for an
              adjustment under this guideline. For example, a defendant who
              is convicted of a drug trafficking offense, whose role in that
              offense was limited to transporting or storing drugs and who is

                                             8
              accountable only for the quantity of drugs the defendant
              personally transported or stored is not precluded from
              consideration for an adjustment under this guideline.

Id. at Application Note 3(A).

       At the initial sentencing hearing, the Government argued that Gonzalez was not

entitled to consideration for a minimal participant adjustment because he was not charged

with participation in a drug trafficking conspiracy, but was instead charged with traveling

to New York to facilitate narcotics trafficking. The District Court adopted the

Government’s interpretation, ruling that “as a legal matter,” the adjustment was not

available to Gonzalez because he was not charged with being a part of a conspiracy.

       We conclude that the District Court erred in its interpretation of the mitigating role

guideline, by determining, as a legal matter, that Gonzalez was precluded from

consideration because he was not charged with a conspiracy offense. Gonzalez pled

guilty to two counts of interstate travel in aid of drug racketeering. We note that even

though Gonzalez was the sole participant charged with the interstate travel offense, the

nature of the offense as an activity in aid of racketeering necessarily implies the existence

of a racketeering enterprise, and hence implicates “concerted criminal activity”

undertaken by other members of the drug-trafficking enterprise. The fact that Gonzalez

was not convicted of a conspiracy offense does not preclude a court from considering him

as part of a larger enterprise, and does not automatically dictate that he cannot be viewed

as a minimal or minor participant in particular conduct in which others also participated.



                                              9
       In light of the foregoing, we find that the District Court quite understandably erred

in ruling on this issue. The fact that Gonzalez was not charged with or convicted of a

conspiracy offense does not preclude consideration for a mitigating role adjustment, and

we remand to the District Court for further proceedings and factual findings regarding

Gonzalez’s eligibility for a mitigating role adjustment.4

                                               IV

       In conclusion, we will vacate the judgment of sentence in this case, and will

remand to the District Court for factual findings and analysis of: (1) the scope of the

“relevant conduct” for which Gonzalez will be held accountable (i.e., whether the base

offense level calculation will consist of only those quantities of drugs attributable to

Gonzalez’s actions, or whether such calculation will include quantities attributable to

other members of the drug trafficking enterprise); (2) the quantity of heroin implicated by

Gonzalez’s acts and any other relevant conduct for which Gonzalez is accountable; and

(3) whether Gonzalez is entitled to a mitigating role reduction.



   4
      We express no conclusion as to whether Gonzalez is entitled to any mitigating role
adjustment, as such a determination is a factual matter reserved to the District Court. See
U.S.S.G. § 3BI.2, Application Note 3(C) (stating that a mitigating role adjustment
determination is “heavily dependent upon the facts of the particular case”). Notably,
Gonzalez may not warrant any mitigating role adjustment as the charge of interstate travel in aid
of racketeering as a result of a plea bargain is “an offense significantly less serious than
warranted by his actual criminal conduct,” U.S.S.G. § 3B1.2, Application Note 3(B), since he
would already have received, in essence, a mitigating role reduction by virtue of the conviction
on a lesser charge. We expect that, upon remand, the District Court will consider all of
these factors in making its factual findings regarding Gonzalez’s eligibility for a
mitigating role adjustment.

                                               10
