U.S. v. Gonzales
| Decision Date | 30 August 1995 |
| Docket Number | D,93-2293,93-2294 and 93-2295,Nos. 93-2292,HERNANDEZ-DIA,s. 93-2292 |
| Citation | 65 F.3d 814 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Miguel GONZALES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Orlenisefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis LEON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario PEREZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward O. Bustamante, Albuquerque, NM, for defendant-appellant Miguel Gonzales (93-2292).
Angela Arellanes, Albuquerque, NM, for defendant-appellant Orlenis Hernandez-Diaz (93-2293).
Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant Luis Leon (93-2294).
Roberto Albertorio, Albuquerque, NM, for defendant-appellant Mario Perez (93-2295).
Presiliano Torrez, Assistant United States Attorney (John J. Kelly, United States Attorney, and Thomas L. English, Assistant United States Attorney, on the briefs), Albuquerque, NM, for plaintiff-appellee.
Before HENRY and McKAY, Circuit Judges, and SHADUR, * Senior District Judge.
This case began as a "reverse sting" operation by the Albuquerque Police Department. In a reverse sting, police officers assume the role of drug dealers in order to infiltrate drug rings. On April 22, 1991, Officer James Torres of the Albuquerque Police Department met a confidential informant and Appellant Leon at the Kettle Restaurant in Albuquerque. (Tr. at 20-21) The purpose of the meeting was to arrange the sale of 100 pounds of marijuana to Mr. Leon and his "money people" for eventual distribution in Miami, Florida. (Tr. at 22) Mr. Leon did not identify his "money people" to Officer Torres during their initial meeting, but did say they were coming to Albuquerque via Dallas, Texas. (Tr. at 24) Later that same day, Appellant Leon contacted Officer Torres and said his "people" had arrived and wanted to see a sample of the marijuana. (Tr. at 25) At approximately 6:30 p.m. on April 22, Officer Torres met Luis Leon at a Circle K in Albuquerque and was introduced to two of Mr. Leon's co-conspirators, Miguel Gonzales and Orlenis Hernandez-Diaz. (Tr. at 26) Detective Gloria later joined Officer Torres and the three appellants at the Circle K and showed the appellants a 35-pound bale of marijuana that was in the trunk of his undercover vehicle. (Tr. at 29) After examining the marijuana, the appellants agreed to buy 100 pounds of marijuana for $60,000. The transaction was to occur the next day at 9:00 a.m. (Tr. at 3, 33)
At approximately 9:30 a.m. the next morning, Officer Torres met Mr. Leon and Mr. Gonzales at the Circle K. Mr. Leon asked whether Officer Torres had the marijuana with him, and Officer Torres replied that he did not because he wanted to see the money first. (Tr. at 34) Mr. Leon took Officer Torres to his apartment to view the purchase money. (Tr. at 34-35) When he entered the apartment, Officer Torres met co-conspirator Mr. Perez. Messrs. Perez, Hernandez-Diaz, and Leon were all in the apartment at that time. (Tr. at 35) The three dealers wanted to see the marijuana again before handing over the $60,000, so Officer Torres took Mr. Leon back to the Circle K so he could again view the drugs. (Tr. at 36) Officer Torres telephoned Detective Gloria and instructed him to bring the marijuana to the Circle K. Upon reaching the store, Appellant Leon once more examined the drugs, then took Officer Torres back to his apartment to complete the transaction. (Tr. at 36) On the way back to the apartment, Mr. Leon told Officer Torres to circle the area to make sure there were no police cars in the vicinity. The officer did as he was instructed and passed two marked patrol cars on the way. Mr. Leon became concerned and asked Officer Torres if he were a police officer. Officer Torres replied that he was not and that he just wanted to complete the deal.
After finishing the circle, Officer Torres pulled into the parking lot below Appellant Leon's apartment and instructed Detective Gloria to park his vehicle east of a Ford Bronco into which the marijuana would be loaded. (Tr. at 37) Once in the parking lot, Appellants Gonzales and Leon again said they wanted to see the marijuana, so all four of them--Officer Torres, Detective Gloria, Appellant Gonzales, and Appellant Leon--went to the back of the undercover vehicle to view the 100 pounds of marijuana. (Tr. at 39) Then, Appellant Leon and Officer Torres went upstairs to Mr. Leon's apartment to count the money.
Once inside the apartment, Mr. Hernandez-Diaz pulled a gun on Officer Torres. Officer Torres raised his hands and pleaded with Mr. Hernandez-Diaz to spare his life. Mr. Leon, who was standing next to Officer Torres, also raised his hands and asked what was going on. Mr. Hernandez-Diaz then relieved Mr. Leon of his weapon, a handgun which was concealed in his waistband. Officer Torres was taken hostage at gunpoint by Mr. Hernandez-Diaz, who apparently intended to steal the marijuana without paying for it. Mr. Hernandez-Diaz placed a cushion against the officer's body and placed the gun against it, telling him to be quiet or he would be killed. While Mr. Hernandez-Diaz held the officer at gunpoint, Appellant Perez patted him down and took his handgun. (Tr. at 53) Officer Torres was then taken into an adjacent bedroom and his hands and feet were taped together and his mouth was taped shut.
It was at this point that the other officers came running up the stairs, kicked in the door, and arrested Appellants Hernandez and Leon. (Tr. at 52) Appellant Perez fled, but was later captured.
As Officer Torres was being held at gunpoint upstairs, Detective Gloria likewise was being held at gunpoint by Appellant Gonzales downstairs. (Tr. at 321) After seeing Officer Torres and Mr. Leon go to the apartment, Mr. Gonzales tapped on the window of Detective Gloria's car and asked to see the marijuana again. Once the trunk was open, Mr. Gonzales pulled out a handgun and pointed it at Detective Gloria, ordering him to go upstairs. (Tr. at 321) Detective Gloria ignored the orders and tried to slam the trunk shut. (Tr. at 321) He then raised his hands in the air, enabling Mr. Gonzales to see the gun in his holster. As Mr. Gonzales reached forward and took the gun, a siren went off. Mr. Gonzales immediately fled the area. (Tr. at 322) Detective Gloria then joined the other officers who were running upstairs to rescue Officer Torres.
The defendants were all convicted of conspiracy to possess and distribute marijuana, 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2; possession with intent to distribute marijuana, 21 U.S.C. Secs. 841(a)(1) and (b)(1)(D); and the use or carrying of a firearm during a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1). They received sentences ranging from 120 to 147 months. In addition, the defendants had previously received substantial state sentences for convictions arising out of the same conduct. The defendants, aside from Mr. Perez, have not directly challenged their conspiracy or firearm convictions, but all have appealed their convictions for possession. They also each raise several other issues. Because common issues predominated, the appeals of Messrs. Gonzales, Hernandez-Diaz, and Perez were consolidated on appeal. Because Mr. Leon's appeal also raises common issues, we have addressed his appeal together with those of his co-conspirators in this opinion. We will first address the common issues and then turn to the individual issues. 1
All of the defendants were given three level increases in their sentences pursuant to U.S.S.G. Sec. 3a1.2(b). This sentence enhancement applies when, "during the course of the offense ... the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement ... officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury." Id. Sec. 3a1.2(b). The appellants concede that they assaulted an officer so as to create a substantial risk of serious bodily injury. Nevertheless, the appellants claim that the application of this enhancement was in error because they did not know or have reasonable cause to believe that the person(s) assaulted were police officers.
The government points to several facts which it contends demonstrate that the appellants reasonably should have known that they were dealing with police officers: first, the fact that Officer Torres and Detective Gloria were carrying guns; second, the presence of marked police cars in the vicinity; and, third, the fact that the appellants themselves expressed suspicions that Officer Torres was a cop. Taken together, we conclude that these facts are insufficient to support the application of this enhancement.
The fact that Officer Torres and Detective Gloria carried weapons would not provide a basis for the reasonable drug dealer to believe that he was dealing with police officers. We have frequently noted in other contexts that firearms are a practically ubiquitous accoutrement of those in the drug trafficking trade. Indeed, each of the drug dealers in this case carried a firearm; there were no unarmed persons at the scene. Thus, the fact that the officers were armed does not in any way label them as police officers.
Similarly, the presence of police cars in the neighborhood did not provide a reasonable basis for the defendants to conclude that they were dealing with police officers. Police cars are a common sight on city streets everywhere, particularly in areas of high crime. There was absolutely nothing in particular that would cause the appellants to link Officer Torres and Detective Gloria with the marked police cars.
Finally, the government makes much of the fact that...
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