US v. Jose Gonzalez, No. 12-5021 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5021 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LUIS CORTES GONZALEZ, a/k/a Luis, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, Chief District Judge. (5:07-cr-00063-GEC-JGW-4) Submitted: June 14, 2013 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, June 25, 2013 and HAMILTON, Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia; Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Luis Cortes Gonzalez ( Gonzalez ) pled guilty to conspiracy to manufacture, distribute, and possess with intent to distribute more than five kilograms of cocaine, more than fifty grams of cocaine methamphetamine, in (count one), using and base, and violation and more than 21 U.S.C. § 846 (2006) a firearm during or of carrying fifty grams of in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006) (count sixty-nine), and was sentenced to 120 months sixty imprisonment months on count imprisonment one on and count a consecutive sixty-nine. term of Gonzalez appealed, and we vacated his conviction and sentence on count sixty-nine, affirmed his conviction on count one, vacated his sentence on count one, and twice remanded for resentencing on that count. On Guidelines ( USSG ) remand, range at 120 the under to district the 135 U.S. months court calculated Sentencing Guidelines imprisonment Gonzalez to 120 months imprisonment. Gonzalez and Manual sentenced On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there are no meritorious issues for appeal, but questioning whether the district court abused its discretion in imposing sentence. Gonzalez has filed two pro se supplemental briefs raising several issues. We affirm. 2 We review the sentence imposed by the district court for reasonableness under an abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). entails appellate substantive A sentence consideration reasonableness imposed within of of a the both the This review procedural sentence. properly standard. Id. calculated range is presumed reasonable by this court. and at 51. Guidelines United States v. Mendoza Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only by showing that the sentence is unreasonable when measured [(2006)] factors. against the [18 U.S.C.] § 3553(a) United States v. Montes Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Counsel and Gonzalez both question whether the district court erred in applying the two-level enhancement under USSG § 2D1.1(b)(1) and, if so, whether it properly declined to apply the safety valve 18 U.S.C. § 3553(e)-(f). provisions of USSG § 5C1.2 and Under USSG § 2D1.1(b)(1), a two-level increase in a defendant s offense level is warranted [i]f a dangerous weapon The enhancement is (including proper a when firearm) the was weapon at possessed. issue was possessed in connection with drug activity that was part of the same course conviction, of conduct United or States common v. scheme Manigan, as 592 the F.3d offense 621, of 628-29 (4th Cir. 2010) (internal quotation marks omitted), even in the 3 absence of proof of precisely concurrent acts, for example, gun in hand while in the act of storing drugs, drugs in hand while in the act of retrieving a gun. 128 F.3d 850, omitted). 852 The (4th Cir. defendant United States v. Harris, 1997) bears (internal the burden quotation to show marks that a connection between his possession of a firearm and his narcotics offense is clearly improbable. Id. at 852-53. We conclude after review of the record that Gonzalez has not met this burden. Gonzalez admitted at the guilty plea hearing to participating in a conspiracy to distribute cocaine and that he possessed a firearm to protect himself from being robbed of drugs he was possessing and distributing as part of the conspiracy. At resentencing on remand, Gonzalez did not point to any evidence to suggest that the connection between the firearm and his narcotics offense was clearly improbable, and this failing continues on appeal. Next, connection with because his Gonzalez offense, the possessed district declined to apply the safety valve reduction. a firearm court in properly USSG § 5C1.2(a) (allowing application of the safety valve only if the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon . . . in connection with the offense ). We thus discern no error in the district court s 4 enhancement of Gonzalez offense level under USSG § 2D1.1(b)(1) and its decision not to apply the safety valve reduction. Additionally, accordance the reviewed in of the Gonzalez remainder pro se court s amended inform Gonzalez, Supreme Court If Gonzalez record supplemental meritorious issues for review. judgment. in of requests This a and briefs court of United that Anders, the and we have remainder have found of no We therefore affirm the district writing, the with the requires right States petition to for be that counsel petition further filed, the review. but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Gonzalez. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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