U.S. v. Gonzalez

• Citation: 16 F.3d 985
• Decision Date: 25 February 1994
• Docket Number: No. 92-50268,92-50268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergio Rafael GONZALEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 985

16 F.3d 985

UNITED STATES of America, Plaintiff-Appellee, v. Sergio Rafael GONZALEZ, Defendant-Appellant.

No. 92-50268.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 10, 1993.

Decided Oct. 12, 1993.

As Amended Dec. 15, 1993.

As Amended Feb. 25, 1994.

Janice Deaton Hogan, San Diego, California, for the defendant-appellant.

Mary A. Schneider, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee on the brief.

Appeal from the United States District Court for the Southern District of California.

Before: BROWNING, BRIGHT, ^* and TANG, Circuit Judges.

BRIGHT, Senior Circuit Judge:

Sergio Rafael Gonzalez was an Immigration and Naturalization Service [INS] inspector who accepted bribes to allow what he thought were loads of illegal drugs to pass through the Calexico Port of Entry [the Calexico Port]. Following his arrest, he provided a full confession and subsequently pled guilty to accepting bribes and conspiracy to accept bribes. At sentencing, the district court increased his base offense level for abuse of trust under U.S.S.G. Sec. 3B1.3, and refused to decrease it for acceptance of responsibility under Sec. 3E1.1. Gonzalez appeals, contending the district court erred in granting the increase for abuse of trust and denying the reduction for acceptance of responsibility. We affirm the increase for abuse of trust, but reverse the denial of the acceptance of responsibility reduction and remand for resentencing in accordance with this opinion.

I.

In July of 1990, the Federal Bureau of Investigation [FBI] learned from a confidential informant that certain INS and/or Customs Service inspectors at the Calexico Port were permitting shipments of drugs to enter into the United States without inspection.

The FBI began an investigation, having the informant and an undercover FBI agent pose as cocaine suppliers trying to pass a load of drugs through the Calexico Port. Their investigation led them to Josephine Flores, who said she was a Customs inspector and, for $30,000, would allow them to cross the border with a shipment of drugs. After learning she was not an inspector, the FBI agent confronted Flores, who promised she would introduce them to an actual inspector.

On October 15, 1990, in a K-Mart parking lot in Calexico, Flores introduced the informant to Sergio Gonzalez, who worked as an INS inspector stopping and inspecting cars as they went through the Calexico Port. At this meeting, Flores proposed a plan in which her mother, Guadalupe Demara Flores, would serve as lookout at the Calexico Port and use a telephone pager to let Josephine Flores know which lane Gonzalez was working. Josephine Flores and the informant would then drive up and Gonzalez would wave them through. Flores stated Gonzalez's fee was $30,000 and her fee was $10,000.

On October 25, 1990, Flores contacted the undercover agent to arrange for a border crossing later that day. The FBI immediately contacted the informant, who met Flores in Mexico. After receiving a signal from Guadalupe Flores that Gonzalez was working in lane six, the informant, driving an FBI controlled car accompanied by Josephine Flores, approached and then drove through Gonzalez's lane. After Gonzalez finished work, he met Flores, the informant, and the FBI agent at the K-Mart parking lot, where the agent told them there were no drugs in the car, and that it had been simply a test run. The FBI agent nevertheless paid Gonzalez $5,000 and Flores $1,000.

On November 16, 1990, the FBI staged another controlled crossing. After learning from Guadalupe Flores which lane Gonzalez was working, the informant and Flores drove the FBI controlled car through Gonzalez's lane. Gonzalez waved the car through without inspection, and, after work, met the FBI agent and Flores at the K-Mart parking lot. After Gonzalez accepted $30,000 and four ounces of cocaine and Flores $10,000, FBI agents arrested Gonzalez, Flores and Flores' mother.

Executing a search warrant at Gonzalez's home, agents found personal use amounts of cocaine and marijuana, drug paraphernalia, scales, and numerous firearms. Gonzalez subsequently admitted to committing bribery and conspiracy to smuggle controlled substances.

On November 28, 1990, a grand jury indicted Gonzalez, charging him with: (1) conspiracy to import cocaine; (2) accepting bribes and conspiracy to accept bribes; (3) possession of cocaine with intent to distribute; and (4) possession of firearms by a drug user.

On November 29, 1990, Gonzalez entered a plea of not guilty. On October 29, 1991, the parties filed a plea agreement in which Gonzalez agreed to plead guilty to the bribery charges in exchange for an agreement by the prosecution to dismiss the other counts.

In the Presentence Report [PSR], the probation officer determined that Gonzalez's criminal history category was I and that his base offense level was 28. Because Gonzalez had shown remorse for his actions, the probation officer recommended a downward adjustment for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, decreasing Gonzalez's base offense level by two points to 26.

The prosecution objected to the PSR, arguing against granting the acceptance of responsibility reduction because Gonzalez had indicated the only reason he had committed the crimes was to help Flores. The probation officer disagreed, maintaining Gonzalez's motive for committing the crime was irrelevant in determining whether to grant the reduction.

At the sentencing hearing, the probation officer noted that the only area of disagreement between the probation department and the government with respect to Gonzalez's sentence concerned whether Gonzalez was entitled to the acceptance of responsibility adjustment. In proceeding to calculate Gonzalez's sentence under the guidelines, the district court first heard arguments as to whether his base offense level should be increased for the abuse of trust adjustment under U.S.S.G. Sec. 3B1.3. Gonzalez argued the two-point increase should not be given because it was already included in the bribery offenses with which he was charged.

The district court then gave what it stated was a "tentative ruling," indicating it was prepared to increase Gonzalez's base offense level for abuse of trust and grant the acceptance of responsibility adjustment. (Sent. tr. of Gonzalez, at 15.) The judge added, however, "[d]o you have anything you want to say about that?" (Id. at 15.) The government then proceeded to oppose the two-level reduction for acceptance of responsibility, arguing Gonzalez's only statement concerning why he had committed the crime was that Josephine Flores had stated her life was in danger.

The district court ultimately decided to increase the base offense level for abuse of trust and deny the reduction for acceptance of responsibility. After calculating his adjusted offense level at 30 and his guideline range at 97-121 months, the district court sentenced Gonzalez to 104 months.

Gonzalez filed a timely notice of appeal. The government subsequently moved this court to dismiss the appeal, arguing Gonzalez had waived his right to appeal under the negotiated terms of the plea agreement. This court ultimately denied the motion, ¹ leading Gonzalez to file this appeal.

II.

The government first reiterates its contention that we should dismiss this case because Gonzalez, in his plea agreement, waived his right to appeal.

Gonzalez's plea agreement contains the following waiver of appeal:

11. Defendant Gonzalez further agrees that, although he is free to argue for whatever sentence he believes is appropriate, he will not appeal any sentence imposed at or below the U.S.S.G. range determined to apply by the Probation Department or the District Court.

(Plea Agreement, 10/29/91, at p 11.) Gonzalez contends a plain and literal reading of this provision shows that it proscribes only the appeal of a sentence imposed at or below the sentencing range, not an appeal of a sentence that is "above the range determined to apply by the Probation Department or the District Court." (Appellant's Br., at 9.) Gonzalez argues that because the district court ultimately imposed a sentence exceeding the Probation Department's recommended range, he may appeal.

Gonzalez also contends the government breached paragraph nine of the plea agreement by opposing a two-level reduction for his acceptance of responsibility after the sentencing judge had already stated he intended to grant the adjustment. Paragraph nine of the plea agreement provides:

9. The Government agrees that if the Court finds that defendant Gonzalez accepts responsibility for his offense, the Government will not oppose a two-level reduction pursuant to U.S.S.G. Sec. 3E1.1.

(Plea Agreement, 10/29/91, at p 9.) Gonzalez maintains the government's breach here releases him from his promise in the agreement not to appeal.

The government counters that although "paragraph 11 of the plea agreement is not a model of clarity and, standing alone, might be considered ambiguous," it must be read within the context of the entire plea agreement and the statements and actions of Gonzalez and his attorney. (Appellee's Br., at 9.)

The government also argues: (1) the district court's initial statement indicating it was granting the acceptance of responsibility reduction was only a tentative finding; (2) the government was not otherwise precluded under the plea agreement from informing the district court of pertinent facts to assist it in making its determination; and (3) its promise in the plea agreement not to oppose the adjustment simply constituted a waiver of the government's prerogative to appeal if it ultimately disagreed with the district court's findings. The government maintains it objected to the acceptance of responsibility reduction because Gonzalez had lied and misled the district court as to why he committed the crimes.

This court reviews the waiver of a statutory...