United States v. Leticia Gonzalez

262 F.3d 867, 2001 Daily Journal DAR 8991, 2001 Cal. Daily Op. Serv. 7298, 2001 U.S. App. LEXIS 18907
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 22, 2001
Docket00-50283
StatusPublished
Cited by42 cases

This text of 262 F.3d 867 (United States v. Leticia Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Leticia Gonzalez, 262 F.3d 867, 2001 Daily Journal DAR 8991, 2001 Cal. Daily Op. Serv. 7298, 2001 U.S. App. LEXIS 18907 (9th Cir. 2001).

Opinion

PER CURIAM:

Leticia Gonzalez appeals the 24-month sentence imposed following her guilty-plea conviction for one count of passing and possessing counterfeit currency, in violation of 18 U.S.C. § 472. Gonzalez contends that she did not know that the individual she used to commit the offense was a minor, so her sentence should not have been enhanced under U.S.S.G. § 3B1.4 (use of a minor). She further contends that the district court engaged in impermissible double-counting by applying enhancements for both use of a minor and aggravated role. See U.S.S.G. §§ 3B1.4, 3Bl.l(c) (1998). We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm the judgment of the district court.

Facts

Gonzalez passed $5,100 in counterfeit currency to her landlord for past-due rent. Gonzalez previously had agreed with a seventeen year-old male that, after she gave the counterfeit currency to her landlord, he would steal it back. By chance, officers observed the juvenile stealing the landlord’s purse, which contained the counterfeit money. After police discovered that the currency was counterfeit, Gonzalez was indicted. This prosecution ensued, and Gonzalez pleaded guilty to passing counterfeit currency, in violation of 18 U.S.C. § 472.

Over Gonzalez’s objections to the pre-sentence report, the district court applied a two-level enhancement for use of a minor, U.S.S.G. § 3B1.4, and a two-level enhancement for recruiting another person-the minor-in the criminal activity of recovering the counterfeit money from the landlord. See U.S.S.G. § 3Bl.l(c).

Analysis

I. 8B14 Enhancement for use of a minor

Gonzalez contends that the district court erred by not requiring the government to prove that she knew that the individual she used was a minor before applying the enhancement under U.S.S.G. § 3B1.4 (1998). We review the district court’s interpretation and application of the Sentencing Guidelines de novo. See United States v. Butler, 92 F.3d 960, 961 (9th Cir.1996). This court applies the rules of statutory construction when interpreting the guidelines. See United States v. Fellows, 157 F.3d 1197, 1200 (9th Cir.1998). If the language of a guideline is unambiguous, its plain meaning controls. See id.

*870 Section 3B1.4 provides: “If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels.” On its face, the guideline does not contain a scienter requirement.

Although Gonzalez concedes the absence of an express scienter requirement, she argues that the court must impute a mens rea requirement under well-established rules of criminal jurisprudence. The cases Gonzalez relies on for this proposition involved statutes defining criminal offenses, not sentencing guidelines or enhancements, in concluding that proof of mens rea is required for a conviction. See, e.g., Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (interpreting 26 U.S.C. § 5861(d)); Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (interpreting 7 U.S.C. § 2024(b)(1)); Morissette v. United States, 342 U.S. 246, 250-51, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (interpreting 18 U.S.C. § 641). Focused as they are on conviction rather than sentencing, these cases do not impute mens rea to the Sentencing Guidelines.

We reject Gonzalez’s argument that the mens rea requirement for criminal offenses generally should be applied to the Sentencing Guidelines. Indeed, we have recently clarified that “[sentencing factors ... are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.” United States v. Lavender, 224 F.3d 939, 941 (9th Cir.2000) (rejecting argument that section 2B3.1(b)(2)(E) implicitly requires a mens rea of intent), cert. denied, 531 U.S. 1098, 121 S.Ct. 828, 148 L.Ed.2d 711 (2001). 1

We decline Gonzalez’s invitation to read a scienter requirement into section 3B1.4 because the plain language of the guideline does not require that a defendant have knowledge that the individual is under eighteen years of age for the enhancement to apply. See Fellows, 157 F.3d at 1200.

Gonzalez further contends that the absence of a scienter requirement in section 3B1.4 would violate due process. This contention fails. The application of section 3B1.4 to Gonzalez did not alter the maximum penalty, negate the presumption of innocence, relieve the government’s burden of proving the underlying offense, or create a separate offense calling for a separate penalty. See McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (setting out the factors to consider in determining whether a sentencing enhancement violates due process); United States v. Goodell, 990 F.2d 497, 499-500 (9th Cir.1993) (applying McMillan factors to Sentencing Guidelines enhancement).

We conclude that the district court did not err by failing to impute a mens rea requirement into section 3B1.4. See Lavender, 224 F.3d at 941. We agree with the Eleventh Circuit’s reasoning in United States v. McClain, 252 F.3d 1279, 1285 (11th Cir.2001), rejecting the argument that a defendant have knowledge of the individual’s status as a minor in order for section 3B1.4 to apply.

II. Double-counting

Gonzalez also contends that application of the enhancements under sec *871 tion 3B1.4 (use of a minor) and U.S.S.G.

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262 F.3d 867, 2001 Daily Journal DAR 8991, 2001 Cal. Daily Op. Serv. 7298, 2001 U.S. App. LEXIS 18907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leticia-gonzalez-ca9-2001.