USA v. Goncalves

• Decision Date: 03 August 2010
• Docket Number: No. 09-10713.,09-10713.
• Citation: 613 F.3d 601
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeremy Alexander GONCALVES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

613 F.3d 601

UNITED STATES of America, Plaintiff-Appellee,

v.Jeremy Alexander GONCALVES, Defendant-Appellant.

No. 09-10713.

United States Court of Appeals,Fifth Circuit.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

Matthew Joseph Kacsmaryk, Asst. U.S. Atty., Dallas, TX, Nancy E. Larson, Asst. U.S. Atty., Fort Worth, TX, for Plaintiff-Appellee.

William Reynolds Biggs, Asst. Fed. Pub. Def., Dallas, TX, Matthew Kyle Belcher, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.

PER CURIAM:

Defendant Jeremy Alexander Goncalves appeals his sentence of thirty-three months' incarceration for his convictions of passing counterfeit notes and for using a falsely altered military discharge certificate. Goncalves argues that the district court miscalculated his sentence under the United States Sentencing Commission Guidelines Manual (the “Guidelines” or “U.S.S.G.”). For the following reasons, we AFFIRM the district court's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2007, Goncalves received a bad-conduct discharge from the United States Army. After his discharge, Goncalves returned to his hometown of Ludlow, Massachusetts, where he applied for work with Bell Helicopter. Bell is located in Hurst, Texas. As part of his application, Goncalves emailed Bell an altered copy of his certificate of discharge from the Army. In the certificate of discharge, Goncalves indicated that he received an honorable discharge from the Army, served in special forces for over two years, and last held the rank of captain. All of these assertions were false. Goncalves also fraudulently represented to Bell in accompanying documents that he had graduated from the University of Massachusetts and was currently employed with Northeast Utilities.

Based on Goncalves's representations, Bell hired Goncalves, paying for him and his family to move to Texas. Goncalves began work for Bell in May 2008. However, as part of its own hiring investigation, Bell subsequently learned that Goncalves had fraudulently altered his certificate of discharge from the Army and lied about his educational and work background. Bell terminated Goncalves in June 2008.

In August 2008, Goncalves attempted to purchase a dirt bike through the Internet from Wilfredo Mendieta for $2,100. When Goncalves and Mendieta met for the purchase, Goncalves handed Mendieta what appeared to be twenty-one $100 bills. However, Mendieta later told authorities that he thought that the bills “felt funny,” so he had them inspected with a counterfeit detection pen. Some of the bills were revealed to be counterfeit. Mendieta turned the bills over to police, where the bills were conclusively identified as counterfeit federal reserve notes, many bearing the same serial number.

Texas state police officers subsequently identified Goncalves as the purchaser of the dirt bike and arrested him. After his arrest, Goncalves admitted to the officers that he had used counterfeit notes to purchase the dirt bike from Mendieta. Goncalves further stated that he had entered into an arrangement with a Nigerian man in France whom Goncalves had met on the Internet. According to Goncalves, the Nigerian man had agreed to send Goncalves counterfeit notes that he would first use to make purchases of items, and that he would then sell at a profit. The scheme then involved Goncalves sending the Nigerian man thirty percent of any profits earned from the scheme. Goncalves later stated to federal officials that he had received a package in the mail containing the fraudulent notes that he used to purchase the dirt bike.

Federal officials performed a note history on the counterfeit bills used in Goncalves's fraudulent purchase of the dirt bike. The note history revealed that someone had used an additional twenty $100 counterfeit bills with the same serial numbers to purchase a home-theater system from Circuit City. A subsequent investigation revealed that Goncalves had used the additional fraudulent bills to purchase the home-theater system.

Goncalves pleaded guilty in federal court to one count of Uttering Counterfeit Obligations of the United States, in violation of 18 U.S.C. § 472, and one count of Using Falsely Altered Military Discharge Certificate, in violation of 18 U.S.C. §§ 498 & 2. Prior to sentencing, a United States Probation Officer submitted a Presentence Report (PSR), which calculated that Goncalves's Guidelines range of imprisonment was twenty-seven to thirty-three months.

Goncalves objected to the recommended Guidelines sentence calculation in the PSR. First, Goncalves argued that his offenses should have been grouped pursuant to U.S.S.G. § 3D1.2(d), which allows for grouping of offenses that “involve substantially the same harm.” Such a grouping would have resulted in a two-level reduction in his Guidelines sentence. Goncalves also argued that the PSR improperly applied § 2B5.1(b)(5), which applies a two-level enhancement if any conduct relevant to the offense occurred outside the United States. The district court overruled both objections and sentenced Goncalves to thirty-three months' incarceration, which was at the top of the calculated Guidelines range.

Goncalves now appeals his sentence and reiterates the objections he made at sentencing.

II. STANDARD OF REVIEW

We review a district court's sentencing decision for abuse of discretion. See United States v. Harris, 597 F.3d 242, 250 (5th Cir.2010). For properly preserved claims, we review the court's application and interpretation of the Guidelines de novo. See United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir.2010). A district court's factual findings, which we review for clear error, must be supported by a preponderance of the evidence. See id. “ ‘A factual finding is not clearly erroneous as long as it is plausible in light of the record read as a whole.’ ” United States v. McMillan, 600 F.3d 434, 457-58 (5th Cir.2010) (quoting United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir.1996)).

III. DISCUSSION

A. No Error for Not Grouping the Offenses under § 3D1.2(d)

Goncalves first argues that the district court erred by failing to group his two convictions under U.S.S.G. § 3D1.2. Specifically, Goncalves argues that because § 3D1.2(d) lists both of the crimes for which he was convicted in a list of offenses “to be grouped,” the court erred in finding that the Guideline did not apply.

Section 3D1.2 states that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group.” The section then sets forth four different categories of offenses that “involve substantially the same harm within the meaning of this rule.” The only such category at issue here is that contained in subsection (d), which applies in the following circumstance:

When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

Id. ¹ Subsection (d) further sets forth three categories of Guidelines that cover certain offenses and how those offenses are treated under § 3D1.2(d). The first category lists Guidelines covering offenses that “are to be grouped” under the subsection. Id. The second category lists Guidelines covering offenses that are specifically excluded from grouping under the subsection. Finally, the third category states that multiple counts of unlisted offenses must be determined on a case-by-case basis. Id., see also United States v. Salter, 241 F.3d 392, 394 (5th Cir.2001).

The Guidelines covering Goncalves's two offenses are found on the same line of the first category of § 3D1.2(d). Because § 3D1.2(d) states that offenses in this list “are to be grouped” under the subsection, Goncalves argues that a per se rule exists regarding their grouping. However, we have held that “grouping is not mandatory or automatic simply because a defendant is charged with an offense that falls under a guideline listed in § 3D1.2(d).” United States v. Lopez-Urbina, 434 F.3d 750, 763 (5th Cir.2005) (citing United States v. Solis, 299 F.3d 420, 459-60 (5th Cir.2002)). Rather, an offense covered by a Guideline in the first category is only “susceptible to grouping under that subsection.” Id. No per se rule exists. ²

When deciding what criteria to consider when determining whether grouping is appropriate under the first category of offenses in § 3D1.2(d), we look to the Guideline's Commentary. See United States v. Patterson, 962 F.2d 409, 416 (5th Cir.1992). Application Note 6 of the Commentary states that “[c]ounts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under this subsection.” U.S.S.G. § 3D1.2 cmt. n.6. The Application Note further states that “[t]he ‘same general type’ of offense is to be construed broadly.” Id.

Goncalves argues that his offenses are of the “same general type” because they are both acts of fraud and involve economic loss. However, these similarities alone are insufficient. See, e.g., United States v. Brisson, 448 F.3d 989, 992 (7th Cir.2006) (convictions for bank fraud and fraud against the United States were not “of the same general type” simply because they were “economic offenses arising out of the failed ownership of the hotel”). Furthermore, such similarities are all that exist between the two offenses. One of the offenses for which Goncalves was convicted took place in August 2008 and involved the purchase of private property with counterfeit bills. The other offense took place in May 2007 and involved the alteration of a military certificate of discharge in order to deceive a company into hiring him. The...