United States v. Gonzalez
| Decision Date | 29 August 2014 |
| Docket Number | Nos. 13–2169,13–2189,13–2892 & 13–3177.,s. 13–2169 |
| Citation | 765 F.3d 732 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Oscar GONZALEZ, Martin Anaya, Sisto Bernal, and Dante L. Reyes, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Kirby Heller, Department of Justice, Washington, DC, for Plaintiff–Appellee.
Oscar Gonzalez, Metropolitan Correctional Center, Chicago, IL, for Defendant–Appellant.
Before BAUER and EASTERBROOK, Circuit Judges, and ST. EVE, District Judge.*
Our circuit is familiar with appeals from convicted gang members of the Almighty Latin Kings Nation.1 This appeal is a consolidation of four cases of former Latin Kings gang members who were indicted, prosecuted, and sentenced in the Northern District of Indiana. The indictment included twenty-three defendants: one defendant went to trial, twenty-one pleaded guilty, and one was never apprehended. The group was part of a major drug trafficking ring and linked to nineteen homicides. After the twenty-two convictions, four defendants filed appeals.
Martin Anaya was the defendant who took his case to trial. He was charged with one count of conspiracy to participate in racketeering, one count of conspiracy to distribute a controlled substance, and two counts associated with the murder of Christina Campos, a member of the rival Latin Counts gang. Anaya faced a sentence of death or life imprisonment. See18 U.S.C. §§ 924(c), 924(j).
It is undisputed that Anaya and three other Latin Kings (Brandon Clay, Jason Ortiz, and a juvenile nicknamed “DK”) were driving in Anaya's van in the territory of their rival, the Latin Counts gang, after midnight on April 22, 2009. They saw three Latin Counts gang members on foot and picked a fight. The fight lasted from a few seconds to a couple minutes, at most, leaving Campos dead from a gunshot wound. The medical examiner concluded that Campos died of a gunshot
There were many versions of how Campos died that night. The three Latin Kings present with Anaya did not testify at trial but made several conflicting statements during the investigation. The three ultimately concluded that none of the Latin Kings were responsible for shooting Campos and suggested that someone from the Latin Counts, Campos' own gang, accidently shot her. Other Latin Kings not present at the shooting testified at trial: they stated that the Latin Kings were not responsible for Campos' murder. Isaac Wilhelm, one of the Latin Counts walking with Campos, identified Anaya in court as one of the people in the van, but Wilhelm ran before shots were fired and could not identify the shooter.
Mary Gonzalez, a nearby resident, also testified. She said that she was on her way out to walk her dog when she heard gunfire. She testified that she saw a man get out of the passenger side of the van, walk between two cars (the location where Campos was later found dead), lean over, fire a gun at the ground a couple times, and get back in the van before it drove away. She identified Anaya as the shooter in a live line-up at the police station three weeks later, but she was not asked to identify Anaya as the shooter during the trial.
The jury returned a verdict convicting Anaya of conspiring to participate in racketeering, a violation of 18 U.S.C. § 1962(d), and conspiring to distribute illicit drugs, a violation of 21 U.S.C. §§ 841(b)(1)(A), 846. The jury found Anaya not guilty of Campos' murder.
The jury answered special interrogatories about Anaya's racketeering conspiracy conviction; it found that the charge was not associated with Campos' murder, the distribution of more than five kilograms of cocaine, nor the distribution of 1,000 kilograms or more of marijuana. The jury did find, however, that Anaya's conviction for conspiring to traffic narcotics involved more than five kilograms of cocaine and 1,000 kilograms or more of marijuana. The district court sentenced Anaya to 360 months' imprisonment for each count, to be served concurrently.
Oscar Gonzalez was charged with one count of conspiracy to participate in racketeering and one count of conspiracy to distribute a controlled substance. The crime underlying the racketeering charge involved an incident in May 2008, when Gonzalez, accompanied by several Latin Kings gang members, fired guns into a tavern in East Chicago, Indiana, killing one person. In exchange for concessions from the government, Gonzalez agreed to plead guilty to both counts and expressly waived his right to appeal his conviction and sentence on any ground except a claim of “ineffective assistance of counsel relate[d] directly to th[e] waiver or its negotiation.” The district court reviewed the plea agreement with Gonzalez, advised him of the rights he was giving up, and reinforced the permanence of that decision. The district court found that Gonzalez knowingly and voluntarily entered his plea of guilty, accepted the plea, and imposed a sentence of 240 months' imprisonment.
Sisto Bernal's legal proceeding was similar to that of Gonzalez. Bernal was charged with one count of interfering with commerce by threats or violence, one count of conspiracy to participate in racketeering, and one count of conspiracy to distribute a controlled substance. In exchange for concessions from the government, Bernal agreed to plead guilty to both counts and expressly waived his right to appeal his conviction and sentence. The waiver signed by Bernal is verbatim to that signed by Gonzalez. A magistrate judge reviewed the plea agreement with Bernal, advised him of the rights he was giving up, found that he knowingly and voluntarily entered his guilty plea, and recommended that the district court accept the plea. The district court accepted the recommendation and imposed a sentence of 288 months' imprisonment.
Again, Dante Reyes' proceeding was just like his codefendants. He was charged with one count of conspiracy to participate in racketeering and one count of conspiracy to distribute a controlled substance. In exchange for concessions from the government, Reyes agreed to plead guilty to the one count of conspiracy to distribute illicit drugs and expressly waived his right to appeal his conviction and sentence. Reyes signed the same waiver as Gonzalez and Bernal. The district court reviewed the plea agreement with Reyes, advised him of the rights he was giving up, and reinforced the permanence of that decision. The district court found that Reyes knowingly and voluntarily entered his plea of guilty, accepted the plea, and imposed a sentence of 262 months' imprisonment.
Anaya does not appeal his conviction but raises three substantive challenges to his sentence. First, Anaya argues that the district court erred when it enhanced his sentence based on a finding that Anaya killed Campos, conduct that he had been acquitted of; second, he attacks the drug quantity attributed to his conspiracy to traffic narcotics conviction; and last, he contends that his sentence is substantively unreasonable.
We review an appellant's claims regarding the district court's legal conclusion and sentencing procedures de novo.United States v. Annoreno, 713 F.3d 352, 356–57 (7th Cir.2013). We review a district court's factual findings at sentencing for clear error and only reverse if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir.2013) (internal quotation and citations omitted). “Likewise, we defer to a district court's determination of witness credibility, which can virtually never be clear error.” United States v. Pulley, 601 F.3d 660, 664 (7th Cir.2010) (citing United States v. Acosta, 534 F.3d 574, 584 (7th Cir.2008)).
It has long been established that “a sentencing court may consider conduct of which a defendant has been acquitted.” United States v. Watts, 519 U.S. 148, 154, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). We have since clarified that “[a]ll an acquittal means is that the trier of fact, whether judge or jury, did not think the government had proved its case beyond a reasonable doubt.” United States v. Horne, 474 F.3d 1004, 1006 (7th Cir.2007). The facts which a judge relies upon to determine the term of a defendant's sentence “need be found only by a preponderance of the evidence, the normal civil standard.” Id. Given the difference in standards of proof, there was no error in the district court's legal conclusion that it could consider Anaya's culpability for Campos' death at the sentencing hearing.
Turning to the district court's factual findings at sentencing, it appears that the district court relied heavily on the credibility of the witnesses. It found the testimony of the Latin Kings to be “questionable,” whereas, it found Wilhelm's and Mary Gonzalez's testimony to be “credible” and “consistent.” We find no error in the district court's reliance on the testimony from one of the survivors of the Latin Kings' attack, supported by the statements of an uninterested bystander. We defer to the district court's determination of credibility, and this evidence easily supported its finding that Anaya was responsible for Campos' murder by a preponderance.
Next, we turn to Anaya's drug conviction. The jury found Anaya guilty of a drug trafficking conspiracy and explicitly found over five kilograms of cocaine and 1,000 kilograms of marijuana were distributed over the course of the conspiracy. At sentencing, the district court found that a preponderance of the evidence supported that Anaya and his co-conspirators distributed over 150 kilograms of cocaine and 1,000 kilograms of marijuana. Anaya wants the precise drug amount proven to a jury, but this is not what the law requires.
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