U.S. v. Gonzales, 92-8387

• Decision Date: 12 July 1993
• Docket Number: No. 92-8387,92-8387
• Citation: 996 F.2d 88
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Simon GONZALES, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 88

996 F.2d 88

UNITED STATES of America, Plaintiff-Appellee, v. John Simon GONZALES, Defendant-Appellant.

No. 92-8387

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 12, 1993.

Ray Bass, Austin, TX (court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

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

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant, Juan "John" Simon Gonzales (Gonzales), was convicted, on his guilty plea pursuant to a plea agreement, of one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced Gonzales to a term of imprisonment of 120 months, a 3 year term of supervised release, and imposed a $50,000 fine and a $50 special assessment. Gonzales now appeals his sentence.

Facts and Proceedings Below

The evidence submitted in support of Gonzales's sentence revealed the following. On February 28, 1991, Gonzales purchased a .38 caliber Rossi Model 88 revolver (the Rossi) at a retail store in Austin, Texas. In order to purchase the weapon, he falsified the required ATF form by stating that he had never been convicted of an offense punishable by a term of imprisonment of more than one year. ¹ Gonzales gave the Rossi to his brother, Marcelo Gonzales (Marcelo), who was not old enough to purchase a weapon. Gonzales purchased the firearm for Marcelo because Marcelo had been assaulted and could use the weapon for protection.

Between February 28 and March 5, 1991, someone stole a stereo system from Marcelo's car. Gonzales, his stepbrother David Madrigal (Madrigal), and Marcelo believed that the culprit was one Robert Bettelyoun (Bettelyoun). Gonzales and Madrigal concocted a plan to get back Marcelo's stereo and to teach Bettelyoun a lesson. On March 5, 1991, they drove Marcelo to his apartment in order for him to get the Rossi. The three brothers then waited at Bettelyoun's residence for him to arrive. Around midnight, Bettelyoun returned from work, and the three brothers kidnapped him at gunpoint, and forced him into a car which Madrigal drove. Marcelo sat in the front, and Gonzales and Bettelyoun sat in the back. During the kidnapping, Madrigal carried a nickel-plated .380 pistol and Marcelo carried the Rossi. ²

While driving, Madrigal relinquished his pistol to Gonzales who leveled the gun barrel against Bettelyoun's forehead and told him that he better reveal the whereabouts of Marcelo's stereo system. Gonzales then took Bettelyoun's necklace, watch, and money from his wallet. Madrigal drove for about thirty minutes before pulling into a rest area. He and Marcelo exited the car, as Gonzales, identified by Bettelyoun as "the big guy," interrogated him about the location of the stereo system. Marcelo and Madrigal then reentered the car, and were also questioning Bettelyoun, when a highway patrolman drove up behind Madrigal's car. The officer instructed the occupants to exit the car, and as Madrigal stepped out from the vehicle, he shot and killed the officer. The three brothers then returned Bettelyoun to his home. Madrigal sought to flee to Mexico but he was apprehended the next day in San Antonio, Texas, after a gun battle with a police officer.

On September 3, 1991, a grand jury returned a two-count indictment against Gonzales for making a false statement in order to purchase a firearm in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(1)(B) (Count One); and with receipt of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Two). Both counts concerned Gonzales's purchase of the Rossi on February 28, 1991. On March 24, 1992, Gonzales entered into a plea agreement whereby in return for entering a guilty plea to Count Two, the government would dismiss Count One.

The probation officer then prepared the Presentence Report (PSR), and computed Gonzales's sentence according to the sentencing guidelines. ³ The officer calculated Gonzales's base offense initially from U.S.S.G. § 2K2.1 which is the guideline for receipt of a firearm by a convicted felon. The officer then applied the cross reference under section 2K2.1(c)(1) which requires the application of section 2X1.1 if the firearm was used or possessed in connection with the commission or attempted commission of another offense. Section 2X1.1(a) mandates that the base offense level is derived from "the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." Id. Here, the probation officer determined that Gonzales's substantive offense was kidnapping. Under section 2A4.1, the section covering kidnapping, the base offense level is twenty-four. Using twenty-four as a benchmark, the officer then included a two-level increase for use of a dangerous weapon as provided for by section 2A4.1(b)(3). He then deducted one level since the kidnapped victim was released within twenty-four hours as provided for in section 2A4.1(b)(4). The officer then applied section 3A1.2(b) which provided a three-level enhancement if a law enforcement officer was assaulted in a manner creating a substantial risk of serious bodily injury. Finally, the officer gave Gonzales a two-level downward adjustment for acceptance of responsibility under section 3E1.1(a). Therefore, Gonzales's total offense level was twenty-six. With a criminal history category of V, the sentencing range was 110-137 months.

Gonzales objected to the PSR, arguing that the probation officer should not have used the cross reference to section 2X1.1; that if this section were used, he should not have been charged with a two-level increase for use of a deadly weapon per section 2A4.1(b)(3); and that he should not have received a three-level increase for assaulting a law-enforcement officer per section 3A1.2(b). The district court overruled his objections, adopted the PSR's recommendations, and sentenced Gonzales to 120 months, the statutory maximum under 18 U.S.C. § 924(a)(2). The district court also sentenced him to a three-year term of supervised release, and imposed a $50,000 fine and a $50 special assessment. Gonzales now appeals his sentence.

Discussion

Gonzales raises basically the same three issues on appeal as he did below. First, he complains that the district court improperly applied the cross reference section 2K2.1(c)(1). Also, Gonzales argues that the district court improperly enhanced his base offense level for assaulting a law enforcement official under section 3A1.2(b). Finally, Gonzales argues that he was placed in double jeopardy when the district court enhanced his base offense level for use of a deadly weapon during the kidnapping.

Gonzales's complaints are based on the district court's allegedly improper application of the sentencing guidelines. This court will "uphold the district court's sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989); see 18 U.S.C. § 3742(e)(2). We review de novo the district court's legal conclusions with respect to the guidelines. Id.; United States v. Suarez, 911 F.2d 1016, 1018 (5th Cir.1990).

A. Cross Reference Section 2K2.1(c)(1) and Relevant Conduct

Gonzales first argues that his base offense level should not have been calculated from the guideline concerning the offense of aggravated kidnapping but from the guideline for the offense with which he was charged--receipt of a weapon by a convicted felon. ⁴ He contends that the cross reference in section 2K2.1(c)(1) to section 2X1.1 is limited by section 1B1.3(a) concerning the general definition of relevant conduct. According to Gonzales, section 1B1.3(a) dictates that a cross reference can be used only for acts committed during, or reasonably foreseeable to, the offense of conviction. ⁵ Therefore, because the receipt of the Rossi and the kidnapping were not part of the same scheme or plan, and the Rossi was purchased with no intent for it to be used in the latter offense, the presence of the Rossi during the aggravated kidnapping was merely "fortuitous" and not foreseeable.

We agree that the aggravated kidnapping was not relevant conduct in connection with Gonzales's charged offense of receipt of the Rossi. However, we disagree with the assertion that in this case section 1B1.3 restricts the application of section 2K2.1(c)(1).

Section 1B1.3 applies to cross references in Chapter Two "[u]nless otherwise specified." U.S.S.G. § 1B1.3(a). "Since § 1B1.3(a) requires that relevant conduct be applied to determine cross references 'unless otherwise specified,' we must decide whether this cross reference requires the application of relevant conduct or specifies otherwise." United States v. Jennings, 991 F.2d 725,--(11th Cir.1993). Section 2K2.1(c)(1) provides in pertinent part:

"If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply--

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above...." Id.

The language of section 2K2.1(c)(1) in no way suggests that it is limited to the offenses that the defendant intended to commit upon receipt or possession of the particular weapon in the charged offense. Rather, the broad language of section 2K2.1(c)(1), particularly its unlimited references to "another offense," indicates that it is not restricted to offenses which would be relevant conduct but embraces all illegal conduct...