United States v. Jose Gonzalez

• Court: Court of Appeals for the Third Circuit
• Decided: January 31, 2022
• Docket: 20-2932
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

Nos. 20-2932 and 20-2933 ______

UNITED STATES OF AMERICA

v.

JOSE GONZALEZ, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 2-12-cr-00759-001 and 2-20-cr-00271-001) District Judge: Honorable Susan D. Wigenton ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 15, 2021 ____________

Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.

(Filed: January 31, 2022) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.

Jose Gonzalez worked as a self-employed personal trainer in New York City; he

also dealt drugs on the side. The latter conduct led to two federal convictions, one for

distributing and possessing with the intent to distribute less than five grams of heroin, see

21 U.S.C. §§ 841(a)(1), (b)(1)(C), and another for conspiring to burglarize pharmacies of

controlled substances, see 18 U.S.C. § 2118(d). For those crimes, he received prison

sentences, followed by concurrent three-year terms of supervised release, which began

upon his release from prison in 2017.

Gonzalez’s supervised release did not go well. He was charged with state-law

misdemeanors related to a physical altercation he had with a doorman at his ex-

girlfriend’s apartment building. Although those charges were later dropped, Gonzalez’s

probation officer still considered that conduct to have violated the conditions of his

supervised release. And that was not his only violation of those conditions. He also

tested positive for cocaine and marijuana use, and he failed to attend required substance

abuse treatment. Twice he did not timely report to his probation officer, and on other

occasions he did not follow the officer’s instructions or respond to the officer’s inquiries.

He also impermissibly left New Jersey to train a client in New York, violating the

COVID-19 stay-at-home orders issued by those states in the process.

To address those issues, the District Court held a revocation hearing. There,

Gonzalez admitted to two violations: one for his refusal to submit to required drug

treatment and another for his failure to follow his probation officer’s instructions. Under

2 the Sentencing Guidelines, those constitute Grade C violations, see U.S.S.G.

§ 7B1.1(a)(3), and when coupled with Gonzalez’s criminal history category of III, they

yield a sentencing range of five to eleven months’ imprisonment, see id. § 7B1.4(a).

After hearing arguments from Gonzalez and the prosecutor, the District Court revoked

Gonzalez’s supervised release, considered the factors in 18 U.S.C. § 3553(a), and

sentenced Gonzalez to two concurrent terms of eight months’ imprisonment – to be

followed by another year of supervised release – all as a result of his two admitted

violations of the conditions of his supervised release.

Through a timely appeal of that sentence, Gonzalez invoked this Court’s appellate

jurisdiction. See 18 U.S.C. § 3742(a). He now argues that his within-Guidelines

sentence was substantively unreasonable. See United States v. Tomko, 562 F.3d 558, 567

(3d Cir. 2009) (en banc); United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). As

he sees it, the District Court abused its discretion in determining his punishment by not

properly accounting for three mitigating factors: the alleged heightened risk that COVID

poses to him in prison due to his medical condition, thrombocytopenia; the interruption

that imprisonment will cause to his personal training business; and his “strong support

network” consisting of his mother and clients. Appellant’s Br. 14. Had the District Court

properly considered those factors, he contends, it would have eschewed imprisonment

altogether and imposed a noncustodial sentence.

But the District Court did consider those factors, and a lengthy explanation is not

necessary to justify a within-Guidelines sentence. See Chavez-Meza v. United States,

3 138 S. Ct. 1959, 1964 (2018). Moreover, a within-Guidelines sentence may be presumed

reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007) (permitting appellate

courts to presume that within-Guidelines sentences are reasonable); United States v.

Handerhan, 739 F.3d 114, 119–20 (3d Cir. 2014) (“If the sentence is within the

applicable Guidelines range, we may presume that the sentence is reasonable.” (citing

Rita, 551 U.S. at 350–51)). Here, where the District Court carefully considered

Gonzalez’s circumstances and provided a detailed explanation for his sentence, the

presumption of reasonableness applies, and Gonzalez’s three counterarguments do not

demonstrate that his sentence was unreasonable.

First, as to the supposed increased risk that Gonzalez faces from COVID,

Gonzalez’s one proffered medical article does not conclude that thrombocytopenia

increases one’s risk of contracting or becoming severely ill from COVID. And, as the

District Court noted, thrombocytopenia had not been identified by the Centers for

Disease Control and Prevention as a risk factor for COVID. Nor did Gonzalez explain

how COVID would pose a greater risk to him in prison, as opposed to on supervised

release. For these reasons, Gonzalez’s COVID concerns do not render his within-

Guidelines sentence unreasonable.

Second, the interruption to Gonzalez’s work does not constitute unreasonableness.

The District Court complimented Gonzalez as “apparently a phenomenal physical or

personal trainer” who was “willing to work.” Sentencing Tr. at 29:19–20, 25 (JA 50).

But even that favorable assessment does not liberate Gonzalez from his “responsibilities

4 . . . under supervised release.” Id. at 32:20 (JA 53). Thus, consequences for Gonzalez’s

business do not make his within-Guidelines sentence unreasonable.

Third, Gonzalez’s support network does not render his within-Guidelines sentence

unreasonable. Although the District Court recognized that “it means a lot that

[Gonzalez’s mother and clients went] to court to support [him] in the middle of a

pandemic,” id. at 34:13–14 (JA 55), an eight-month prison sentence was still reasonable

due to Gonzalez’s troubling pattern of behavior and lack of respect for the terms of his

supervised release.

In sum, the District Court meaningfully considered Gonzalez’s arguments. Its

imposition of a within-Guidelines prison sentence for his violations of the conditions of

his supervised release was not an abuse of discretion, and we will affirm the judgment of

conviction.