U.S. v. Gonzales, 90-1544

• Citation: 929 F.2d 213
• Decision Date: 03 April 1991
• Docket Number: No. 90-1544,90-1544
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergio GONZALES, a/k/a Sergio Gonzalez, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 213

929 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. Sergio GONZALES, a/k/a Sergio Gonzalez, Defendant-Appellant.

No. 90-1544.

United States Court of Appeals, Sixth Circuit.

Argued March 18, 1991.

Decided and Filed April 3, 1991.

Michael J. Stern, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Kim D. Johnson (argued), Detroit, Mich., for defendant-appellant.

Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant Sergio Gonzales challenges the adequacy of his trial counsel and the length of his sentence following his cocaine-trafficking conviction. For the following reasons, we affirm Gonzales' conviction and sentence.

I.

In July, 1989, Salvador Rodriguez ("Agent Rodriguez"), a special agent with the Drug Enforcement Administration ("DEA"), received information from a confidential informant that defendant-appellant Sergio Gonzales ("Gonzales" or "appellant") was selling cocaine. Following a preliminary investigation by the DEA, the confidential informant agreed to purchase an ounce of cocaine from Gonzales on July 21, 1989 at a Burger King parking lot in Detroit, Michigan.

Before meeting with Gonzales, the informant and his car were thoroughly searched to ensure that the informant did not possess any controlled substances. The informant was then given $600 in DEA funds and was accompanied by an undercover DEA agent to the Burger King parking lot. Soon after contacting the appellant from a pay phone located in the parking lot, Gonzales arrived. After meeting with Gonzales, the confidential informant returned to his car and told the DEA agent that Gonzales would return in approximately fifteen minutes with an ounce of cocaine.

Following Gonzales' return to the Burger King parking lot five to ten minutes later, the informant approached, and entered, Gonzales' car where the two met privately, though under constant DEA surveillance. In addition to the ounce of cocaine, the informant and Gonzales arranged for the additional purchase of 500 grams of cocaine (for $10,500) later that same day. After exiting the appellant's vehicle, the informant returned to his car as Gonzales drove from the parking lot. The informant immediately handed Agent Rodriguez a plastic bag containing approximately one ounce of cocaine. Moreover, the informant no longer possessed the DEA's $600.

While under surveillance after leaving the Burger King parking lot, Gonzales drove to the residence of Leonel Fajardo ("Fajardo"), his co-defendant, then drove, alone, to his own residence. A short time later Gonzales emerged from his residence carrying a brown paper bag. The appellant entered his car and returned to Fajardo's residence whereupon Fajardo exited his residence and entered Gonzales' car. Gonzales and Fajardo then drove to meet the informant at a street corner selected by Gonzales to conduct the 500 gram cocaine transaction. Gonzales and Fajardo parked for a few minutes after arriving at the street corner, then drove back to Fajardo's residence when the informant failed to show. Unbeknownst to Gonzales and Fajardo, the informant had been advised by an unknown woman to leave the street corner due to police surveillance in the area.

As Fajardo exited Gonzales' car after arriving at Fajardo's residence, undercover officers emerged from behind the appellant's vehicle and identified themselves as law enforcement officers. Fajardo immediately bolted from the car carrying the brown paper bag, ran into and through his house, and was apprehended as he ran out his back door while throwing the paper bag to the ground. The bag contained white powder which was later determined to be approximately 300 grams of cocaine. Fajardo and Gonzales were immediately arrested. A search of Gonzales, incident to his arrest, resulted in an additional amount of cocaine (approximately 8 grams) being found in his pocket.

On November 9, 1989, a four-count superseding indictment charged Gonzales with conspiracy to possess with intent to distribute (and conspiracy to distribute) cocaine (Count I), distribution of 27.43 grams of cocaine (Count II), aiding and abetting the possession with intent to distribute 304.9 grams of cocaine (Count III), and possession of 7.8 grams of cocaine (Count IV).

Following a bench trial (Gonzales waived his right to a jury trial), the district court judge found the appellant guilty of Counts I, II and IV; the judge found Gonzales not guilty of Count III. After reviewing the Probation Office's presentence report, the district court judge departed upward from the applicable Sentencing Guidelines' range (97-121 months) and sentenced Gonzales to 236 months in prison.

Gonzales thereafter filed a timely notice of appeal.

II.

Sergio Gonzales argues that he was denied effective assistance of counsel because his attorney: (1) failed to demand a probable cause hearing to determine the legality of Gonzales' arrest; and (2) failed to produce the confidential informant at trial. This ineffective assistance of counsel claim was not presented to the district court, however. Because an ineffective assistance of counsel claim may not be raised for the first time on appeal, we are precluded from addressing the merits of Gonzales' claim. See United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.1989) ("This court will not review an ineffective assistance of counsel claim raised for the first time on appeal."). See also United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990) ("Furthermore, although it strongly appears that defendant Rocha was not denied effective assistance of counsel, this court declines to consider the claim of ineffective assistance of counsel for the first time on appeal. The defendant may properly raise this issue in a motion to the district court pursuant to 28 U.S.C. Sec. 2255."); United States v. Iles, 906 F.2d 1122, 1123 (6th Cir.1990) ("As for Iles' ineffective assistance of counsel argument, however, we are precluded from reviewing this argument for the first time on appeal."). But see United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990) ("As a general rule, a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations. The customary procedure followed in this situation by the various circuits is to permit the defendant to raise his ineffectiveness of counsel claim in a proper post-conviction proceeding under 28 U.S.C. Sec. 2255. When, however, the record is adequate to assess the merits of the defendant's allegations, some courts will consider them. We believe such an exception is applicable in this case.").

Because Gonzales' ineffective assistance of counsel claim was not presented to the district court, and because the appellate record is not adequate to assess the merits of Gonzales' allegations, we are precluded from reviewing the appellant's ineffective assistance of counsel claim.

III.

Gonzales next argues that his sentence was incorrectly calculated and unduly harsh:

First the point of departure was in error because the Sentencing Guidelines were scored too high. There was no evidence to support the theory that defendant intended to distribute over 500 grams of cocaine--thus raising his Sentencing Guidelines base level to 26. Nor was there evidence that defendant organized the conspiracy; which, in turn, raised the base level to 28.... Moreover, there were no aggravating circumstances that would lead a reasonable factfinder to exceed the guidelines.... The reason taken into consideration for departure--basically defendant's prior record--were [sic] already factored in and, at any rate, do [sic] not justify the excessive departure that was given.

Appellant's Brief at 10-11 (footnotes omitted).

Quantity of Cocaine

Though Gonzales argues that there was no credible evidence to support the district court's finding that the conspiracy involved more than 500 grams (but less than 2 kilograms) of cocaine, the appellant's argument is without merit. The United States Sentencing Guidelines provide:

Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of ... all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense[.]

United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3(a)(1) (Nov. 1989).

Though Gonzales appears to concede that he was involved in some cocaine trafficking, he argues that the 500 gram figure used by the sentencing court is too high in light of the amount of cocaine actually found in the brown paper bag (approximately 304 grams), the 27.43 grams previously sold to the informant, and the 7.8 grams found in the appellant's possession when arrested. However, "[u]nder the sentencing guidelines, the amount of the drug being negotiated, even in an uncompleted distribution, shall be used to calculate the total amount in order to determine the base level." United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). See U.S.S.G. Sec. 2D1.4, comment. (n.1) ("If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the...