U.S. v. Rodriguez-Matos, RODRIGUEZ-MATOS

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtSMITH
Citation188 F.3d 1300
Parties(11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio, a.k.a. Jose Antonio Matos-Rodriguez, Defendant-Appellant.
Docket NumberNo. 98-4741,RODRIGUEZ-MATOS,98-4741
Decision Date17 September 1999

Appeal from the United States District Court for the Southern District of Florida. (No. 97-865-CR-SH), Shelby Highsmith, Judge.

Before BIRCH and DUBINA, Circuit Judges, and SMITH*, District Judge.

SMITH, District Judge:

Jose Antonio Rodriguez-Matos ("Matos") was charged in a four count indictment with making counterfeit currency in violation of 18 U.S.C. 471,1 selling counterfeit currency in violation of 18 U.S.C. 473,2 possessing counterfeit currency in violation of 18 U.S.C. 472,3 and assaulting a Secret Service Agent with a dangerous weapon (an automobile) in violation of 18 U.S.C. 111(a).4 He was convicted of the first three offenses by a jury, but acquitted of the assault charge. At sentencing the district court increased Matos' base offense level two levels for possession of a firearm in connection with the offense of selling counterfeit currency pursuant to United States Sentencing Guidelines ("Guidelines") 2B5.1(b)(3), three levels for assaulting a law enforcement officer with an automobile (the acquitted conduct) pursuant to Guidelines 3A1.2(b),5 and two levels for recklessly creating a substantial risk of death or serious bodily injury to another person during flight from the scene of the crime pursuant to Guidelines 3C1.2. We affirm.

I. Background

This case began when a confidential informant notified the Miami Field Office of the United States Secret Service that Matos was producing counterfeit currency. The informant recorded a consensually monitored telephone conversation on November 8, 1997, during which Matos agreed to sell sixty counterfeit $20 bills for $300 in genuine currency. The deal thus arranged occurred later that same day under controlled circumstances outside the informant's residence. Secret Service agents and officers of the Metro-Dade County, Florida, Police Department surreptitiously observed Matos as he drove a gold-colored Mercedes partially into the informant's driveway and sounded its horn. The informant walked from his house to the automobile and handed an envelope containing $300 in genuine currency to Matos through the open driver's window, receiving in exchange an envelope containing $1,500 in counterfeit currency: i.e., the sixty counterfeit $20 bills Matos had agreed to sell, plus a $300 "bonus" in fake Federal Reserve notes.

As Matos began to back his vehicle from the driveway, an automobile occupied by two Secret Service agents quickly moved into a position partially blocking the street. Plain-clothed Secret Service Agent Edwardo Garcia stepped from the passenger door of that vehicle, placed his right hand on the waistband of his pants--thereby drawing attention to his handgun and badge--extended his left hand in a manner signifying "halt," and yelled "stop, police." Agent Garcia later testified that Matos at first "looked startled and ... a bit surprised," but then, as Matos made "eye contact" with Garcia, his "expression turned to one of anger, he turned the wheels [of his automobile] towards me ... gunned the engine ... and came right towards me." Garcia used one hand to push off the hood of Matos' car as it sped by. One surveillance officer testified to observing Garcia "bouncing" off the hood of Matos' automobile. Although not injured, Agent Garcia was "pretty scared" for the "first time" in his career.

Matos was pursued by Metro-Dade County police officers in two unmarked vehicles with flashing blue lights. The chase extended some distance, beginning at 12th Avenue near its intersection with 29th Street in Miami, and--after meandering several blocks northwardly, and then doubling back toward the south--ending near 16th Avenue and 29th Street. In the course of it, Matos "ran stop signs, ... made right turns at stop signs without stopping, ... drove in the opposite lanes or against oncoming traffic," sometimes at "better than double the speed limit." At one point, Matos was observed throwing an object from the driver's window of his automobile. A semiautomatic pistol with seven live rounds in the magazine later was recovered at that location. Matos eventually was apprehended, but only after pursuing officers boxed his automobile in a cul-de-sac from which there was no exit. Even then, Matos did not surrender peaceably, but had to be subdued.

A search of Matos' residence following arrest produced a Hewlett-Packard ink-jet color copier, paper, paper trimmings, cutting utensils, and other tools of the counterfeiting trade. A genuine $20 Federal Reserve note was found on the glass surface of the copy machine. Its serial numbers matched those on the bills sold to the informant. Finally, an additional $720 in counterfeit Federal Reserve notes was seized. That amount, when added to the $1,500 sold to the informant, yielded a total of $2,220 in counterfeit currency attributable to Matos.

Following Matos' conviction on the counterfeiting charges embraced in counts one through three of the indictment, the investigative report prepared in anticipation of sentencing computed his base offense level as 15, in accordance with Guidelines 2B5.1(b)(2).6 The probation officer recommended three enhancements: (1) a two level increase under 2B5.1(b)(3) for Matos' possession of a firearm in connection with the offense of selling counterfeit currency; (2) a three level upward adjustment under 3A1.2(b) for Matos' assault of Secret Service Agent Garcia; and (3) an additional two level increase under 3C1.2 for Matos' reckless operation of his motor vehicle during flight. The addition of these enhancements yielded an "adjusted offense level" of 22. Three levels then were deducted pursuant to 3E1.1(a) and (b)7 for Matos' "acceptance of responsibility,"8 resulting in a "final offense level" of 19. That, together with Matos' criminal history category of I, suggested a guidelines' sentencing range of thirty to thirty-seven months.

Matos objected to all enhancements, but the district court overruled and sentenced him to concurrent terms of thirty-seven months imprisonment on each count of conviction. On this appeal Matos asserts: the district court erred by applying a 2B5.1(b)(3) enhancement, because he did not use the firearm thrown from his vehicle "in connection with" the offense of selling counterfeit currency; the district court erred by applying an enhancement for reckless endangerment during flight under 3C1.2; and, the district court's imposition of enhancements under both 3A1.2(b) and 3C1.2 constitutes impermissible "double counting." Following thorough review, we find no merit to defendant's second contention.9 Accordingly, we address only the first and last issues.

II. Discussion
A. The Firearm Enhancement Under 2B5.1(b)(3)

Application note 1 to 2B5.1 explains that "[t]his guideline applies to counterfeiting of United States currency and coins, food stamps, postage stamps, treasury bills, bearer bonds and other items that generally could be described as bearer obligations of the United States, i.e., that are not made out to a specific payee." Sub-section (a) provides that the "[b]ase offense level" for all such offenses is 9, while sub-section (b) addresses those commonly occurring, "specific offense characteristics" deemed by the Sentencing Commission to be most relevant to the determination of an offense level that most closely "fits" the crime actually committed.10

The part pertinent to this case, 2B5.1(b)(3), provides: "If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13." (Emphasis added.) Neither the text of that guideline nor the commentary to it defines what the Sentencing Commission intended by its use of the phrase, "in connection with." Moreover, this court has not previously addressed the relationship that must exist between a firearm and a counterfeiting offense for the 2B5.1(b)(3) enhancement to apply.

For his part, Matos urges this court to follow by analogy the Fifth Circuit's decision in United States v. Fadipe, 43 F.3d 993 (5th Cir.1995), where that court construed the same "in connection with" phrase, but as it is used in the context of 2K2.1(b)(5), discussed infra.

The government, on the other hand, argues that this court should reason by analogy from our own decision in United States v. Young, 115 F.3d 834 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 727, 139 L.Ed.2d 666 (1998), where we construed the same phrase in the context of 4B1.4(b)(3)(A), pertaining to armed career criminals. For the reasons articulated below, we find the government's argument more compelling.

The Fifth Circuit's decision in Fadipe grew from the following facts. The defendant submitted a credit application containing false information to a Texas bank. An attentive bank official reviewed the application, concluded it was fraudulent, and contacted the United States Secret Service. Secret Service agents thereafter conducted a controlled delivery of bank checks to the defendant's apartment. He was arrested after retrieving the checks from his mailbox, as he drove from the apartment complex. Arresting officers "recovered a loaded gun from the front passenger area of Fadipe's automobile," together with "numerous applications for loans from various banks, records containing the personal and financial history of various individuals and other materials which could be used in bank fraud schemes." Id. at 994. Following the defendant's conviction for bank fraud11 and unlawful possession of a firearm by an illegal alien,12 the district court enhanced his base offense level pursuant to 2K2.1(b)(5).

Section 2K2.1 of the Guidelines pertains to federal offenses involving "Unlawful...

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