U.S. v. Gonzalez-Lopez, GONZALEZ-LOPE
| Decision Date | 07 September 1990 |
| Docket Number | No. 89-8093,D,GONZALEZ-LOPE,89-8093 |
| Citation | 911 F.2d 542 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Ramonefendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Julie E. Carnes, William R. Toliver, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellant.
Jake Arbes, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before FAY and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.
In this appeal, the government contends that the district court misapplied the Sentencing Guidelines. Ramon Gonzalez-Lopez (Gonzalez), was convicted on various drug charges. At sentencing, the government sought to classify Gonzalez as a career offender pursuant to Sentencing Guidelines Sec. 4B1.1 ("Guidelines") in part because he had several prior felony convictions. The district court concluded that Gonzalez was not a career offender because it determined that none of his prior convictions qualified as crimes of violence within the meaning of section 4B1.2. Alternatively, the court held that even if Gonzalez was a career offender, it would depart downward from the career offender guideline range. The government appeals; we vacate and remand for resentencing.
Gonzalez was convicted after a jury trial of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846, possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a), and attempting to distribute cocaine in violation of 21 U.S.C. Sec. 846. The presentence investigation report (PSI) determined that Gonzalez should be classified as a career offender under Guidelines Sec. 4B1.1. The report concluded that this mandated a total offense level of 34, a criminal history category of VI, and a sentencing range of 262-327 months.
The PSI listed the following four prior felony convictions which putatively involved either violence or the threat of violence:
CRIMINAL CONVICTIONS
Date of Arrest Charge/Agency Date Sentence
Imposed/Disposition
072078 (age 18) Robbery by Force and Fear (# 111478 Adjudication
781099A) Miami, FL. withheld, 3 yrs. prob
The defendant was arrested in the company of two females immediately after they
had stolen a lady's purse which contained $5.35. The defendant was
represented by the public defender
102181 (age 21) Armed Robbery (# 8123607) 92882 sentenced to 364
Miami, FL. PD days, Dade County Jail
time served
The defendant was identified from a photo lineup as the perpetrator of a
robbery at Pantry Pride supermarket and was arrested on above warrant issued
on October 16, 1981. Court file is unavailable. Represented by attorney
Goodman
020783 (age 23) 1) Attempted Burglary of (# 1) Sentenced to 3 yrs. prob.
833102B) occupied Credit for 90 day time
residence. 2) Obstruction served. 2) No disposition.
of Justice by Disguised
Person Miami, FL. PD
The defendant came to victim's apartment and knocked at the door. When victim
came to the door she could see how the defendant was trying to open the door
by force and held the door knob from inside. At that moment defendant and
codefendant left. Victim called the police and, when the defendants were
arrested, she identified them both as the offenders. A search of the
defendant revealed two burglary tools and two lock picks.
092381 (age 21) 1) Burglary--unoccupied (# Convicted and sentenced. No
8124018) 2) Grand Theft further disposition
(added charges) Miami PD. information available.
Lost file.
The defendant's fingerprints were found inside victim's apartment from which
$450 in merchandise had been taken. The defendant admitted this offense to
the probation officer and advised that he received a 3 year probated
sentence. The defendant also stated that he was represented by counsel.
CRIMINAL CONVICTIONS
Date of Arrest Charge/Agency Date Sentence
Imposed/Disposition
072078 (age 18) Robbery by Force and Fear (# 111478 Adjudication
781099A) Miami, FL. withheld, 3 yrs. prob.
The defendant was arrested in the company of two females immediately after they
had stolen a lady's purse which contained $5.35. The defendant was
represented by the public defender.
102181 (age 21) Armed Robbery (# 8123607) 92882 sentenced to 364
Miami, FL. PD days, Dade County Jail,
time served.
The defendant was identified from a photo lineup as the perpetrator of a
robbery at Pantry Pride supermarket and was arrested on above warrant issued
on October 16, 1981. Court file is unavailable. Represented by attorney
Goodman.
020783 (age 23) 1) Attempted Burglary of (# 1) Sentenced to 3 yrs. prob.
833102B) occupied Credit for 90 day time
residence. 2) Obstruction served. 2) No disposition.
of Justice by Disguised
Person Miami, FL. PD
The defendant came to victim's apartment and knocked at the door. When victim
came to the door she could see how the defendant was trying to open the door
by force and held the door knob from inside. At that moment defendant and
codefendant left. Victim called the police and, when the defendants were
arrested, she identified them both as the offenders. A search of the
defendant revealed two burglary tools and two lock picks.
092381 (age 21) 1) Burglary--unoccupied (# Convicted and sentenced. No
8124018) 2) Grand Theft further disposition
(added charges) Miami PD. information available.
Lost file.
The defendant's fingerprints were found inside victim's apartment from which
$450 in merchandise had been taken. The defendant admitted this offense to
the probation officer and advised that he received a 3 year probated
sentence. The defendant also stated that he was represented by counsel.
The PSI further noted that Gonzalez had been convicted of a non-violent felony offense in 1979 and several misdemeanors in 1982, 1983, and 1987. He was also arrested between 1978 and 1987 on charges of dealing with stolen property, grand theft, petit theft, possession of controlled substances, 1 disorderly conduct, obstructing police action by giving false information, and loitering and prowling. In addition, Gonzalez was the subject of an outstanding arrest warrant issued by the Chicago police in 1984 for failure to appear in connection with a marijuana charge.
The district court conducted three sentencing hearings, but only a transcript of the final hearing appears in the record on appeal. At the third sentencing hearing, Gonzalez argued that the circumstances underlying his robbery, armed robbery, residential burglary, and attempted burglary convictions showed they did not in fact involve violence or force and were therefore not crimes of violence as defined by section 4B1.2. He also argued that his armed robbery conviction was actually a simple robbery or lesser offense which was incorrectly listed 2 and that the attempted burglary was only a misdemeanor under Florida state law. Alternatively, assuming that the convictions satisfied the definition of a crime of violence and he was correctly labeled a career offender, Gonzalez argued that a downward departure should be granted because the career offender guideline failed to provide adequately for a situation where, as in his case, the prior offenses did not involve violence but were still sufficient to result in a guideline's range of 262-327 months incarceration.
The government argued that while section 4B1.2 authorizes a court to consider the elements of an offense required for a conviction, it does not permit review of the facts underlying each conviction. Alternatively, the government asserted that a downward departure was not permitted in Gonzalez's case because the guidelines had adequately taken his circumstances into account.
Relying on defense counsel's representation of the facts underlying Gonzalez's prior convictions, the sentencing court found that the 1978 robbery conviction and the 1981 burglary and armed robbery offenses "lack[ed] the requisite element of violence" (R6-67) to qualify as predicate crimes of violence under section 4B1.2. The judge further found that the 1983 attempted burglary was a misdemeanor under Florida law, or, alternatively, that the state had failed to sufficiently prove that it was actually a felony conviction. Based on these findings, the court found that Gonzalez was not a career offender within the meaning of section 4B1.1.
The district court further concluded that even if Gonzalez qualified as a career offender, a downward departure was warranted because the Sentencing Commission ("Commission") did not "adequately consider[ ]" (R6-68) a situation where a person with Gonzalez's criminal history could be sentenced to over 27 years. The court also concluded that sentencing Gonzalez as a career offender would be "grossly unfair and grossly excessive." (R6-68). The court then calculated the total offense level at 16, which combined with an unchanged criminal history category of VI to produce a sentencing range of 46-57 months. Gonzalez received the maximum sentence...
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