United States v. Gonzalez

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 3, 2024
• Docket: 24-6050
• Status: Unpublished

Opinion

Appellate Case: 24-6050 Document: 32-1 Date Filed: 12/03/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 3, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-6050 (D.C. No. 5:04-CR-00179-R-1) DENNIS EMERSON GONZALEZ, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

A jury convicted Dennis Gonzalez in 2004 of numerous counts in a 79-count

superseding indictment related to his role in a conspiracy to distribute illegal drugs,

including methamphetamine. The district court sentenced him to 360 months’

imprisonment. In December 2023, he brought a motion seeking compassionate

release under 18 U.S.C. § 3582, but the district court denied the motion.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-6050 Document: 32-1 Date Filed: 12/03/2024 Page: 2

Mr. Gonzalez, proceeding pro se,1 now appeals. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the denial of the § 3582 motion.

BACKGROUND

After Mr. Gonzalez’s conviction, the Presentence Investigation Report

calculated a total offense level of 46 and a criminal history category of I, resulting in

a recommendation of life imprisonment under the Sentencing Guidelines. The court

sentenced Mr. Gonzalez to 360 months’ imprisonment.2

Mr. Gonzalez filed the instant3 § 3582 motion in December 2023, arguing

three circumstances presented an extraordinary and compelling reason to reduce his

sentence. He argued (1) his sentence was unusually long because his Guideline range

was based on a 10-to-1 drug ratio for actual methamphetamine and methamphetamine

mixtures, (2) his health conditions and the alleged mismanagement of COVID-19 by

the Bureau of Prisons put him at a high risk of developing severe symptoms, and

1 “Because [Mr. Gonzalez] appear[s] pro se, we liberally construe his pleadings. Nevertheless, he . . . must comply with the same rules of procedure as other litigants.” Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018) (internal citation omitted). And in the course of our review, “[w]e will not act as his counsel, searching the record for arguments he could have, but did not, make.” Id. 2 This court substantially affirmed Mr. Gonzalez’s conviction on direct appeal but remanded for re-sentencing on one count. See United States v. Gonzalez, 238 F. App’x 350, 356 (10th Cir. 2007). On remand, the district court altered some of the provisions of its judgment related to the supervised release terms, but the 360-month sentence remained in effect. 3 This is Mr. Gonzalez’s second § 3582 motion. Mr. Gonzalez filed his first § 3582 motion in 2022, asserting COVID-19 presented an extraordinary and compelling circumstance justifying compassionate release, but the district court denied that motion, and that judgment is not before this court on appeal.

2 Appellate Case: 24-6050 Document: 32-1 Date Filed: 12/03/2024 Page: 3

(3) the COVID-19 pandemic subjected him to harsher conditions of confinement.

The district court denied the motion. The court rejected reasons 2 and 3 because

Mr. Gonzalez was vaccinated and any conditions he faced were common to all

inmates and therefore not extraordinary.

The court rejected reason 1 for two reasons: first, it concluded “any disparities

in the methamphetamine-related sentencing guidelines cannot fairly be described as

an extraordinary and compelling circumstance given that the guidelines apply to all

offenders.” R. vol. 1 at 200. Second, even if Mr. Gonzalez received the

four-offense-level reduction he sought in his § 3582 motion based on the alleged

unfairness in the method the Guidelines used to calculate the methamphetamine

amount, his sentence would not change. The district court also concluded that, to the

extent his motion requested § 3582 relief on the basis of Amendment 782 or

Amendment 821 to the Sentencing Guidelines, Mr. Gonzalez was ineligible for a

sentence reduction under either amendment.

This appeal followed.

DISCUSSION

“We review a district court’s order on a motion for compassionate release for

abuse of discretion.” United States v. Bradley, 97 F.4th 1214, 1218 (10th Cir. 2024).

On appeal Mr. Gonzalez no longer presses the second and third reasons for

compassionate release he argued before the district court. Instead, he focuses

entirely on his first reason: the alleged disparity in the Guidelines related to

methamphetamine amounts. He argues “the change in sentencing ratio[] coupled

3 Appellate Case: 24-6050 Document: 32-1 Date Filed: 12/03/2024 Page: 4

with the Sentencing Commission’s retroactive application of Amendments 782

and 821 would have resulted in at least a two level but more likely four level

reduction to the [G]uideline level determined at sentencing to be applicable.” Aplt.

Opening Br. at 12.

But a four-level reduction from Mr. Gonzalez’s previously calculated offense

level of 46 would result in an offense level of 42, for which the Guidelines range is

360 months – life imprisonment. Mr. Gonzalez’s 360-month sentence is at the

bottom of this range. So, even assuming the correctness of Mr. Gonzalez’s argument

regarding the methamphetamine disparity, his sentence would remain unchanged.4

The district court therefore did not abuse its discretion when it concluded he failed to

demonstrate a sufficiently extraordinary and compelling circumstance warranting a

sentence reduction.

CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Bobby R. Baldock Circuit Judge

4 Mr. Gonzales does not argue in his opening brief for a reduction below the 360-month minimum under § 3582(c)(1), and we will not make such an argument for him. See Requena, 893 F.3d at 1205.