United States v. Gonzalez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 3, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 01-21069 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ENRIQUE GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-663-1 --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Carlos Enrique Gonzalez, proceeding pro se, appeals his

jury-trial conviction for kidnaping, hostage taking, and making

threatening communications in interstate and foreign commerce.

Gonzalez argues that the evidence was insufficient to show that

he was guilty of kidnaping and hostage taking. Because Gonzalez

moved for a judgment of acquittal both at the close of the

Government’s case and at the close of all the evidence, the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-21069 -2-

standard of review for this issue is “whether any reasonable

trier of fact could have found that the evidence established

the essential elements of the crime beyond a reasonable doubt.”

United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).

The evidence was sufficient to support Gonzalez’s

convictions. The evidence established that Gonzalez deceived and

coaxed the victim into accompanying him to Mexico where he held

the victim against his will and threatened to kill the victim if

the victim’s mother did not do as he requested. See United

States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001); United

States v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir. 1991).

Gonzalez next contends that the district court erred in

overruling his objection to the four-level enhancement he

received for his leadership role in the offense, pursuant to

U.S.S.G. § 3B1.1(a). The district court’s determination that

Gonzalez played a leadership role because he controlled and

utilized family members and various friends to assist him in

facilitating the offense is not clearly erroneous and was

sufficient to justify the enhancement under U.S.S.G. § 3B1.1(a).

See United States v. Ronning, 47 F.3d 710, 711 (5th Cir. 1995).

Gonzalez avers that the district court erred in departing

three levels from a total offense level of 32 to a total offense

level of 35. The district court specifically stated that it was

departing three levels because Gonzalez had made 14 threatening

telephone calls to the victim’s mother and her family over a No. 01-21069 -3-

six-week period of time. Gonzalez has not shown that the

district court abused its discretion in departing upward.

See United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)

(en banc); see also U.S.S.G. § 5K2.0, p.s.

Gonzalez avers next that the district court abused its

discretion in departing upward based on its finding that his

criminal history category underrepresented the seriousness of

his past criminal conduct and that the district court did not

consider the intermediate criminal history category of II in

departing from a criminal history category of I to a category

of III. The district court did not abuse its discretion. See

United States v. Cade, 279 F.3d 265, 270 (5th Cir. 2002). The

district court did consider the intermediate criminal history

category of II and explained that the upward departure was based

on Gonzalez’s long history of abusive and violent relationships

with women and his own children. See United States v. Lambert,

984 F.2d 658, 662-63 (5th Cir. 1993) (en banc).

Gonzalez argues next that the district court erred in

increasing his base offense level by two, pursuant to U.S.S.G.

§ 2A4.1(b)(3). He contends that the victim’s testimony was

insufficient to support the enhancement. The presentence report

reflected that Gonzalez poured gasoline on the victim and

threatened to set him on fire. By adopting the information of

the presentence report, the district court, in effect, made a

credibility determination that the information contained in the No. 01-21069 -4-

presentence report was credible. Such credibility determinations

are within the province of the trier-of-fact. See United States

v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998).

To the extent that Gonzalez seeks to raise an ineffective-

assistance claim, such a claim is not reviewable on direct appeal

because the record is not sufficiently developed on the merits

of the claim. See United States v. Bounds, 943 F.2d 541, 544

(5th Cir. 1991). Given the foregoing, the judgment of the

district court is AFFIRMED.

Gonzalez’s motion to file a reply brief in excess of the

page limits is GRANTED. His motion to supplement the record on

appeal is DENIED.

AFFIRMED; MOTION TO FILE A REPLY BRIEF IN EXCESS OF THE PAGE

LIMITS GRANTED; MOTION TO SUPPLEMENT THE RECORD DENIED.