                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4814




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-4814


                            UNITED STATES OF AMERICA

                                             v.

                                FAUSTINO GONZALEZ
                                     a/k/a Moyo

                                    Faustino Gonzalez,
                                            Appellant


                      Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                            (D.C. Criminal No. 02-cr-00261-7)
                     District Judge: Honorable William W. Caldwell


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 22, 2005

              Before: RENDELL, FUENTES and SMITH, Circuit Judges.

                                  (Filed: May 16, 2005)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Faustino Gonzalez appeals his sentence of 120 months for heroin distribution. He

argues that, in light of the Sentencing Guidelines, the District Court erred in determining
that his federal sentence should run consecutively to an undischarged state term of

imprisonment. In addition, Gonzalez challenges his sentence under United States v.

Booker, __ U.S. __, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). He argues that the District

Court erred in determining that his interstate travel in aid of drug trafficking involved a

total of approximately two kilograms of heroin, and in finding that Gonzalez was not

entitled to a reduction for minimal participation. Having concluded that the sentencing

issues Appellant raises are best determined by the District Court in the first instance, we

will vacate the sentence and remand for resentencing in accordance with Booker.1 Before

doing so, however, we will address the issue raised by Gonzalez regarding whether,

under the Guidelines or statute, his sentence should have been concurrent rather than

consecutive, so as to provide guidance to the District Court on remand should it wish to

rely on the Guidelines in this respect.

                                               I.

       The parties are familiar with the relevant facts. On October 23, 2002, Gonzalez

and several other defendants were indicted in the Middle District of Pennsylvania for

distribution and possession with the intent to distribute heroin. Gonzalez was

specifically charged in the Indictment with incidents alleged to have occurred between

September 2000 and February 2002. A Superseding Information was filed charging

Gonzalez with two counts of interstate travel in aid of racketeering, occurring between


       1
           Turner has not challenged his conviction.

                                               2
November of 2001 and December 31, 2001 (Count 1) and January 1, 2002 and the end of

February of 2002 (Count 2), both in violation of 18 U.S.C. § 1952(a)(3). Gonzalez

entered a plea of guilty pursuant to an agreement with the Government.

       At his sentencing hearing, Gonzalez objected to three aspects of the pre-sentence

report: the quantity of heroin calculated, the District Court’s refusal to adjust for

downward for his claimed minimal participation, and failure to grant him credit for

acceptance of responsibility. The District Court awarded Gonzalez credit for acceptance

of responsibility and denied the other objections. Gonzalez was sentenced to 120

months’ imprisonment, consisting of two consecutive 60 month terms each for Count 1

and 2. The District Court also determined that the 120 month federal sentence would run

consecutively to an undischarged state sentence Gonzalez was currently serving.2

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. A District Court’s decision to

impose a concurrent or consecutive sentence is reviewed for abuse of discretion. See

United States v. Swan, 275 F.3d 272, 275 (3d Cir. 2002).

                                              II.

       First, Gonzelez contends that it was error for the District Court to impose a

consecutive federal sentence because 1) he was serving time for similar state charges and


       2
        The state sentence apparently resolved three criminal actions filed against
Gonzalez: No. 217-99 for heroin distribution, and Nos. 5717-02 and 5718-02 for the sale
of cocaine and possession of a firearm.

                                              3
2) the Sentencing Guidelines provide the District Court with the authority to impose, and

in some cases, require imposition of, concurrent sentences. See U.S.S.G § 5G1.3. The

Government responds that the underlying conduct between the state and federal

sentences was not related, and that U.S.S.G § 5G1.3 similarly allows a sentencing court

to impose consecutive sentences.

       Not only does § 5G1.3 allow imposition of a consecutive sentence, such sentences

are required where “the instant offense was committed while the defendant was serving a

term of imprisonment (including work release, furlough, or escape status) or after

sentencing for, but before commencing service of, such term of imprisonment.” U.S.S.G

§ 5G1.3(a). Here, Gonzalez himself, in attempting to refute the level of involvement

charged by the government, asserts that “for most of the time period alleged in the

[Superseding] Information, Mr. Gonzalez was incarcerated on unrelated state charges.”

(Appellant’s Brief at 7.) However, the record does not provide the precise date(s) of

conviction or commencement of sentence for the relevant undischarged term(s) of

imprisonment,3 nor did the District Court make such findings. Therefore, we cannot

determine with certainty, despite the strong indication, that Gonzalez was serving a term

of imprisonment or had been sentenced to a term but not yet commenced serving during

the time period alleged in the Superseding Indictment. Thus we are required to look to


       3
        It appears that, at the time of sentencing by the District Court, Gonzalez was
serving a 5-10 year sentence on state charges and had a pending appeal concerning parole
revocation for a 24 month period based on the federal charges underlying this appeal.

                                            4
the remaining sections of § 5G1.3.

       Under section 5G1.3(b), where a term of imprisonment resulting “from another

offense that is relevant conduct to the instant offense of conviction . . . and that was the

basis for an increase in the offense level for the instant offense,” a district court must

credit a defendant with time served on the undischarged term and impose a sentence for

the instant offense concurrent to that undischarged term. See U.S.S.G § 5G1.3(b)(1) &

(2). The government argues correctly that the instant offenses for which Gonzalez was

sentenced by the District Court are not related to those that form the basis of his 5-10

year undischarged state term and which involve, inter alia, distribution of heroin in 1998,

the sale of cocaine in the spring of 2002, and possession of a firearm. The instant

offenses involved interstate travel to obtain heroin for Danny Rivera, an individual

unrelated to the previous state charges. Therefore, the District Court was not required

under § 5G1.3(b) to impose a concurrent sentence.

       This leaves us with § 5G1.3(c), the provision allowing a district court to exercise

its discretion to impose a concurrent sentence where neither sections 5G1.3(a) or (b)

apply. As discussed above, it is not clear section (a) is not applicable; however,

assuming it is not, the District Court here was well within the dictates of the Guidelines

in imposing consecutive sentences. See U.S.S.G. § 5G1.3(c) (“(Policy Statement) In any

other case involving an undischarged term of imprisonment, the sentence for the instant

offense may be imposed to run concurrently, partially concurrently, or consecutively to


                                              5
the prior undischarged term of imprisonment to achieve a reasonable punishment for the

instant offense.”). Of course, “in the aftermath of Booker, the Federal Sentencing

Guidelines – once a mandatory regime circumscribing the discretion of district court

judges – are ‘effectively advisory.’” United States v. Davis, 2005 U.S. App. LEXIS 7333,

at *2 (3d Cir. Apr. 28, 2005) (quoting Booker, 125 S. Ct. at 757).

       The relevant statutory authority enumerates only one circumstance under which

consecutive sentences are not proper, and it is not applicable here. That statute – 18

U.S.C. § 3584(a)4 – expressly provides:

       [I]f a term of imprisonment is imposed on a defendant who is already subject
       to an undischarged term of imprisonment, the terms may run concurrently or
       consecutively, except that the terms may not run consecutively for an attempt
       and for another offense that was the sole objective of the attempt. . . . Multiple
       terms of imprisonment imposed at different times run consecutively unless the
       court orders that the terms are to run concurrently.

       Therefore, a district court has discretion to impose either a consecutive or

concurrent sentence when a defendant, as Gonzalez was in this case, is subject to an

undischarged term of imprisonment. See United States v. Velasquez, 304 F.3d 237, 243

(3d Cir. 2002) (“There is often little, if any, discussion in the case law of the fact that

section 3584 recognizes the authority of the sentencing judge to impose concurrent or

consecutive sentences without dependence on departure provisions in the Guidelines.”)

And, because the District Court did not sentence Gonzalez consecutively “for an attempt


       4
        Section 3584 previously was subject to the Guidelines. See United States v.
Holifield, 53 F.3d 11, 13 (3d Cir. 1995).

                                               6
and for another offense that was the sole objective of the attempt,” it was within the

District Court’s discretion to impose consecutive terms of imprisonment. 18 U.S.C. §

3584(a).

                                            III.

       As to the other two sentencing issues raised (namely the heroin quantity and

Gonzalez’s level of participation) we need not rule as we will VACATE the sentence and

REMAND for resentencing in accordance with Booker.




                                             7
