United States v. Francisco Gonzales

714 F. App'x 367
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 11, 2017
Docket16-11292
StatusUnpublished
Cited by3 cases

This text of 714 F. App'x 367 (United States v. Francisco Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Francisco Gonzales, 714 F. App'x 367 (5th Cir. 2017).

Opinion

PER CURIAM: *

Francisco Bernabe Gonzales pled guilty to one count of conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. He appeals the procedural and substantive reasonableness of his sentence. Because we find no reversible error, we AFFIRM.

I. Background

In December 2013, Gonzales pled guilty to one count of conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §' 846. The presen-tence report (“PSR”) calculated a total offense level of 31 1 and a criminal history category of VI. The base offense level was 32. The PSR added two levels for possession of a firearm in furtherance of drug-trafficking and subtracted three levels for acceptance of responsibility.

The PSR stated that Gonzales was a career offender under U.S.S.G. § 4Bl,l(b) for two prior felony convictions for crimes of violence: Burglary of a Habitation and Evading Arrest with a Vehicle. This finding did not affect Gonzales’s offense level because the offense level was greater than the career offender level. However, it did affect his criminal history category. His total criminal history score of 8 would have given him a criminal history category of IV. However, because the PSR found that he was a career offender under U.S.S.G. § 4Bl.l(b), he had a criminal history category of VI; With a total offense level of 31, this meant the sentencing guidelines recommended a range of 188 to 235 months imprisonment. Gonzales objected to the career offender finding, arguing that evading arrest with a vehicle is not a crime of violence. The district court overruled the objection and sentenced Gonzales to 235 months of imprisonment with a three year term of supervised release.

Gonzales appealed. This court affirmed the district court judgment in March 2015. United States v. Gonzales, 598 Fed.Appx. 311 (5th Cir. 2015) (cert. granted, judgment vacated, — U.S.-, 136 S.Ct. 84, 193 L.Ed.2d 5 (2015)). Two months later, the Supreme Court decided Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Id. at 2557, 2563. The Supreme Court granted certiorari to Gonzales and remanded this case to this court “for further consideration in light of Johnson.” Gonzales v. United States, — U.S. -, 136 S.Ct. 84, 193 L.Ed.2d 5 (2015). This court remanded to the district court, stating only: “IT IS ORDERED that appellant’s opposed motion to remand case for resentencing is GRANTED.”

The third addendum to the PSR. concluded that the residual clause to the “crime of violence” definition in the guidelines, U.S.S.G. § 4B1.2(a)(2), must be invalid because this circuit treated cases involving the residual clauses of the ACCA and § 4B1.2(a)(2) interchangeably. See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). This meant Gonzales could not be a career offender and lowered his criminal history category to IV, giving him a guideline imprisonment range of 151 to 188 months. The district court disagreed and cited this court’s decision, In re Arnick, 826 F.3d 787 (5th Cir. 2016), which noted that Johnson did not address the constitutionality of the sentencing guidelines. A fourth addendum to the PSR followed the district court’s reasoning and found that Gonzales was a career offender with a criminal history category of VI, giving him a guidelines imprisonment range of 188 to 235 months.

The Government and Gonzales objected to the third addendum to the PSR because it applied the 2013 guidelines (those in effect at the time of original sentencing) rather than the 2015 guidelines (those in effect at the time of resentencing). Under the 2015 guidelines, Gonzales’ base offense level would be 30 instead of 32. This would result in a lower guideline range of 151 to 188 months. The 2015 guidelines also got rid of the residual clause of U.S.S.G. § 4B1.2(a)(2), which would lower Gonzales’ criminal history category as noted above. If both amendments were applied to Gonzales, he would have a guideline imprisonment range of 121 to 151 months. The fourth addendum to the PSR rejected these arguments and continued to apply the 2013 guidelines.

At the sentencing hearing, the district court adopted the PSR as amended. The court again sentenced Gonzales to 235 months imprisonment and 3 years supervised release. A few months later, the Supreme Court upheld the constitutionality of the residual. clause in U.S.S.G. § 4B1.2(a)(2). Beckles v. United States, — U.S.-, 137 S.Ct. 886, 897, 197 L.Ed.2d 145 (2017).

II. Standard of Review

We review a district court’s interpretation of the sentencing guidelines and our remand orders de novo. United States v. Amieva-Rodriguez, 874 F.3d 898, 903 (5th Cir. 2017); Janvey v. Alguire, 847 F.3d 231, 245 (5th Cir. 2017). We apply a harmless error standard of review to procedural errors in applying the guidelines. United States v. Ortiz-Chavira, 873 F.3d 473, 474-75 (5th Cir. 2017).

We review arguments not raised to the district court for plain error. United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016). Under this standard, “when there was (1) an error below, that was (2) clear and obvious, and that (3) affected the defendant’s substantial rights, a court of appeals has the discretion to correct it but no obligation to do so.” United States v. Galvan Escobar, 872 F.3d 316, 319 (5th Cir. 2017) (emphasis in original) (internal quotation marks omitted). In order to show that a sentencing error affected the defendant’s substantial rights, the defendant must show that “the error increased the term of a sentence, such that there is a reasonable probability of a lower sentence on remand.” Id. at 319 (internal quotation marks omitted). “If the first three prongs are satisfied, we remedy the error ‘only if it seriously affected the fairness, integrity or public reputation of the judicial proceedings.’” Id. at 320 (citation omitted).

III. Analysis

The parties dispute the meaning of this court’s remand order following the Supreme Court’s remand in light of Johnson. As noted above, this court stated only: “IT IS ORDERED that appellant’s opposed motion to remand case for resen-tencing is GRANTED.” Gonzales argues that, taken in combination with the Supreme Court’s remand, this mandate implied that the district court should have applied Johnson during resentencing. But even if the district court erred in interpreting its duty on remand, the error was harmless.

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Bluebook (online)
714 F. App'x 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-francisco-gonzales-ca5-2017.