Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2007

USA v. Gonzalez
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3599




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 06-3599
                                    __________


                         UNITED STATES OF AMERICA

                                         v.

                             FAUSTINO GONZALEZ,
                                          Appellant
                                  __________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Criminal No. 02-cr-00261-07)
                   District Judge: Honorable William W. Caldwell
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 on July 10, 2007

                  Before: RENDELL and AMBRO, Circuit Judges
                          and SHAPIRO,* District Judge.

                               (Filed: July 31, 2007)
                                    __________

                            OPINION OF THE COURT
                                  __________


__________________

   * Honorable Norma L. Shapiro, Senior Judge of the United States District Court for
     the Eastern District of Pennsylvania, sitting by designation.
SHAPIRO, District Judge.

       Appellant-defendant Faustino Gonzalez (“Gonzalez”) appeals a criminal sentence

of 84 months imposed following a plea of guilty to two counts of interstate travel in aid of

racketeering in violation of 18 U.S.C. § 1952(a)(3). Gonzalez’s counsel, submitting there

are no nonfrivolous issues raised in the appeal, has moved to withdraw from the appeal,

and filed a brief in accordance with Anders v. California, 

(1967). We will

affirm the District Court’s judgment of sentence and grant counsel’s motion to withdraw.

                                             I.

       In the summer of 2001, the Bureau of Narcotics Investigation, Drug Enforcement

Administration, and Internal Revenue Service jointly investigated reported members or

associates of the Almighty Latin King and Queen Nation (the “Latin Kings”) led by Luis

D. Rivera (“Rivera”). Rivera’s brother, Gonzalez, traveled with Rivera to New York to

purchase heroin in February 2001 and December 2001. (PSR ¶ 8.) Gonzalez did not

know the amount purchased, but described it as a “large quantity.” 

23, 2002, Gonzalez was charged with two counts of “intentionally and

knowingly manufacturing, distributing, or possessing with the intent to manufacture and

distribute heroin,” in violation of 21 U.S.C.A. § 841(a)(1), and aiding and abetting the

commission of an offense, in violation of 18 U.S.C.A. § 2. Both charged events allegedly

occurred from September 2000 through February 2002. For much of that time period,

Gonzalez was incarcerated on unrelated state charges; he was incarcerated on February



                                             2
26, 2001, and re-paroled to a drug program from August 27, 2001, until November 27,

2001.

        Gonzalez pled guilty to a felony information charging him with two counts of

interstate travel in aid of racketeering under 18 U.S.C. § 1952(a)(3). At sentencing,

Gonzalez objected to three aspects of the pre-sentence report: miscalculation of the

quantity of heroin; failure to recognize his minimal participation in the offense; and the

failure of the trial court to grant a reduction for acceptance of responsibility. The District

Court granted Gonzalez a two level decrease for acceptance of responsibility, but denied

his other objections.

        Gonzalez was sentenced to 120 months of imprisonment (consecutive 60-month

terms on Counts One and Two) consecutive to Gonzalez’s undischarged terms of

imprisonment in York County.1 Gonzalez was also sentenced to two three-year terms of

supervised release on Counts One and Two, concurrent to each other.2

        Gonzalez, appealing his sentence, argued: his federal custodial sentence should run

concurrent to his undischarged state terms of imprisonment; the District Court erred in

determining his interstate travel in aid of drug trafficking involved a total of

approximately two kilograms of heroin; and he was entitled to a reduction for minimal



  1
   It appears that, at the time of sentencing, Gonzalez was serving two concurrent 5-10
year terms on state charges and had a pending appeal concerning parole revocation for a
24 month period.
  2
   Gonzalez was also ordered to pay a $1,000 fine.

                                              3
participation. We held the District Court had discretion to impose a custodial sentence

consecutive to Gonzalez’s undischarged state terms, did not decide the other two issues

raised on appeal, vacated Gonzalez’s sentence, and remanded for resentencing in light of

the subsequent decision in United States v. Booker, 

(2005).

       At the District Court resentencing hearing, it imposed a sentence of 108 months’

incarceration, one year less than the previous sentence; otherwise, the prior sentence was

reimposed. Gonzalez appealed again and argued the District Court miscalculated the

drug amounts and improperly denied his request for a downward departure under the

advisory Sentencing Guidelines as a minimal participant. We vacated his sentence and

remanded for a second resentencing hearing and directed the District Court to address the

scope of the “relevant conduct” for which Gonzalez would be held accountable, the

quantity of heroin involved in Gonzalez’s acts, any other relevant conduct, and whether

Gonzalez was entitled to a mitigating role reduction.

       At the second resentencing, the District Court found the amount of heroin was at

least 80 grams but less than 100 grams; it also agreed to a two-level reduction in the

offense level because Gonzalez was a minor participant in the drug operation. Gonzalez

was sentenced to 60 months in custody on Count One and 24 months on Count Two

consecutive to Count One but concurrent to Gonzalez’s undischarged terms of

imprisonment in York County (a total of 84 months of incarceration). The District Court




                                             4
also imposed three years of supervised release.3 Gonzalez filed a timely appeal and now

argues: his 24-month sentence on Count Two should have been imposed concurrent to the

60-month sentence on Count One; the District Court applied the incorrect offense level

and criminal history category; and he should have received a four-level decrease in

offense level as a “minimal participant.” Counsel filed an Anders motion to withdraw.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       Under Anders, if counsel, after conscientious examination, finds the case wholly

frivolous, he should advise the court and request permission to 

. The request to withdraw must be accompanied by a brief referring to anything in the

record that might arguably support the appeal; the brief must be provided to the appellant

and time allowed him to respond. 

fully examines all the proceedings and

decides whether the case is wholly frivolous. 

court finds the case frivolous, it

may grant counsel’s request to withdraw and dismiss the appeal, or proceed to a decision

on the merits. 

the court finds any of the legal points arguable on their merits, it

must afford the indigent appellant assistance of counsel to argue the appeal. 

Rule 109.2(a) reflects the Anders guidelines. It requires that,

“[w]here, upon review of the district court record, trial counsel is persuaded that the

appeal presents no issue of even arguable merit, trial counsel may file a motion to



  3
   Gonzalez again was ordered to pay a $1,000 fine.

                                              5
withdraw and supporting brief pursuant to [Anders], which shall be served upon the

appellant and the United States.” Third Circuit L.A.R. 109.2(a).

       The court's inquiry when counsel submits an Anders brief is twofold. It must first

determine whether counsel adequately fulfilled the requirements of Rule 109.2(a). United

States v. Youla, 

, 300 (3d Cir. 2001). The Anders brief must satisfy the court

that counsel has thoroughly examined the record in search of appealable issues, and

explain why the issues are frivolous. See 

not raise and reject every

possible claim, but, at a minimum, he or she must meet the “conscientious examination”

standard under Anders. 

then determines whether an independent review of the record presents

any issues that are not frivolous. 

Where the Anders brief initially appears

adequate on its face, the appellate court is guided in reviewing the record by the brief

itself. 

on a matter of law is frivolous where none of the legal points are

arguable on the merits. 

motion raises one issue: whether the District Court erred by

imposing consecutive sentences for the two counts of interstate travel in aid of

racketeering. Counsel summarized the facts and procedural history of the case, identified

the issue, and cited the applicable law. He explained the issue is frivolous because

Gonzalez, having pled guilty to interstate travel in aid of racketeering, in violation of 21

U.S.C.A. § 1925(a)(3), on two distinct occasions, was subject to sentencing for each

violation. When multiple terms of imprisonment are imposed on a defendant at the same

                                              6
time, the district court may impose concurrent or consecutive terms, except the terms may

not run consecutively for an attempt and for another offense that was the sole object of

the attempt. 18 U.S.C. § 3584(a). The Sentencing Guidelines advise, “if the sentence

imposed on the count carrying the highest statutory maximum is less than the total

punishment, then the sentence imposed on one or more of the other counts shall run

consecutively, but only to the extent necessary to produce a combined sentence equal to

the total punishment.” U.S.S.G. § 5G1.2(d). The statutory maximum of 60 months for

one count of interstate travel in aid of racketeering is less than Gonzalez’s sentencing

guidelines range of 70 to 87 months. The consecutive sentence imposed by the District

Court, totaling 84 months, is within the guidelines range and is reasonable because

Gonzalez committed interstate travel in aid of racketeering on two separate occasions.

The Court agrees this issue is frivolous.4

       In response to the Anders motion, Gonzalez filed a brief raising two additional

issues. Gonzalez argues the District Court applied the incorrect offense level and



  4
    Under 18 U.S.C. § 3584(b), in determining whether to impose consecutive sentences,
a district court must also consider the 18 U.S.C. § 3553(a) factors. The record must
demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.
United States v. Cooper, 

, 329 (3d Cir. 2006). A court is not required to
discuss and make findings as to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing. 

resentencing hearing on June
9, 2006, the District Court heard statements from Gonzalez, from two of his family
members, and argument from counsel about Gonzalez’s post-arrest rehabilitation. The
Judge noted the offense level and criminal history category, and acknowledged that
Gonzalez had a loving family, before imposing the sentence. The District Court
adequately considered the 18 U.S.C. § 3553(a) factors.

                                             7
criminal history category. Under U.S.S.G § 2E1.2, the base offense level for an 18

U.S.C. § 1952(a)(3) offense is the greater of six or the offense level applicable to the

underlying unlawful activity with respect to which the travel was undertaken. The

offense level under U.S.S.G § 2D1.1 for drug offenses involving at least 80 grams but

less than 100 grams of heroin is 24. The District Court subtracted two levels for minor

participation and two levels for acceptance of responsibility, and correctly concluded

Gonzalez’s offense level was 20. Sent. Hr’g Tr. 3, 10, June 9, 2006.

       The pre-sentence report, citing U.S.S.G. § 4A1.1, states Gonzalez has a subtotal of

nine criminal history points based on three York County Court convictions for delivery of

heroin and cocaine. Two points were added under U.S.S.G. § 4A1.1(d) because Gonzalez

committed the instant offense while on parole. Another point was added under U.S.S.G.

§ 4A1.1(e) because Gonzalez committed the instant offense less than two years after his

release from imprisonment in York County. Gonzalez has a total of 12 criminal history

points; that would ordinarily result in a criminal history category of V, but as a career

offender, his criminal history category is automatically increased to VI. Gonzalez’s

argument that his offense level and criminal history category were miscalculated is

frivolous.

       Gonzalez also argues he should have received a four-level decrease in offense

level because he was a minimal participant. U.S.S.G. § 3B1.2 provides a four-level

decrease in the offense level of a “minimal participant” in any criminal activity and a two-

level decrease in the offense level of a “minor participant.” A “minimal participant” is

                                              8
one who plays a minimal role in concerted activity and is “plainly among the least

culpable of those involved.” U.S.S.G. Manual § 3B1.2 cmt. n. 4 (2006). This adjustment

is to be applied infrequently. 

participant” is one who is less culpable than

most other participants, but whose role cannot be described as minimal. U.S.S.G. Manual

§ 3B1.2 cmt. n. 5 (2006).

       In applying § 3B1.2, a district court must weigh the totality of the particular

circumstances in a defendant’s case, and is not required to grant an adjustment based

solely upon the defendant’s assertions. U.S.S.G. Manual § 3B1.2 cmt. n. 3(C) (2006).

The district court’s inquiry involves weighing factors such as the defendant’s relationship

to other participants, his knowledge of others’ activities, the importance of his actions to

the success of the venture, his economic interest in the scheme and his physical

participation. United States v. Price, 

, 735 (3d Cir. 1994). District courts

exercise broad discretion in applying § 3B1.2 and their rulings are left largely undisturbed

on appeal. See United States v. Isaza-Zapata, 

, 238-39 (3d Cir. 1998);

United States v. Haut, 

, 217 (3d Cir. 1997) (district court’s factual findings

regarding classification as minimal participant are sustained unless clearly erroneous).

Gonzalez accompanied his brother to New York to purchase heroin. When this Court

remanded for resentencing on April 26, 2006, we noted, “Gonzalez may not warrant any

mitigating role adjustment as the charge of interstate travel in aid of racketeering as a

result of a plea bargain is ‘an offense significantly less serious than warranted by his

actual criminal conduct,’ U.S.S.G. § 3B1.2, Application Note 3(B), since he would

                                              9
already have received, in essence, a mitigating role reduction by virtue of the conviction

on a lesser charge.” United States v. Gonzalez, 178 Fed. Appx. 130, 135 n. 6 (3d Cir.

2006). Nevertheless, finding Gonzalez a minor participant, the District Court granted a

two-level reduction in offense level. The decision not to grant a four-level reduction was

clearly within its discretion. Gonzalez’s argument is frivolous.5

       Where the court finds adequate merit to the appeal, the court will discharge current

counsel, appoint substitute counsel, and restore the case to the calendar. Third Circuit

L.A.R. 109.2(a); see 

. Where an appeal is without merit, the court

will grant counsel’s Anders motion and dispose of the appeal without appointing new

counsel. 

no merit to Gonzalez’s appeal.

                                            III.

       We will AFFIRM the June 9, 2006, sentence imposed by the District Court and

GRANT counsel’s motion to withdraw.




  5
    We also note that Gonzalez makes allegations in support of an ineffective assistance of
counsel claim in the “Statement of facts” section of his brief only. If an appellant fails to
set forth a particular issue on appeal and present an argument in support of that issue in
the opening brief, then the appellant normally has abandoned and waived that issue on
appeal and we do not address it. Kost v. Kozakiewicz, 

, 182 (3d Cir. 1993).
Gonzalez has not set forth any arguments or citations relevant to an ineffective assistance
of counsel claim in his brief. No ineffective assistance of counsel claim has been
preserved, and we decline to address any such claim.

                                             10