United States v. Gomez-Jimenez

• Decision Date: 29 April 2014
• Docket Number: Nos. 12–5030,13–4059.,s. 12–5030
• Citation: 750 F.3d 370
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Erasto GOMEZ–JIMENEZ, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Aaron Juarez–Gomez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

750 F.3d 370

UNITED STATES of America, Plaintiff–Appellee,

v.Erasto GOMEZ–JIMENEZ, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Aaron Juarez–Gomez, Defendant–Appellant.

Nos. 12–5030, 13–4059.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2014.

Decided: April 24, 2014.

As Corrected April 29, 2014.

ARGUED: Paul K. Sun, Jr., Ellis & Winters LLP, Raleigh, North Carolina, for Appellant Erasto Gomez–Jimenez; Joseph Bart Gilbert, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant Aaron Juarez–Gomez. Joshua L. Rogers, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant Aaron Juarez–Gomez. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Yvonne V. Watford–McKinney, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge NIEMEYER joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

AGEE, Circuit Judge:

Before the court are two related cases that we have consolidated. In one case, Erasto Gomez–Jimenez (“Erasto”) appeals the district court's judgment sentencing him to 180 months' imprisonment by challenging the application of several sentencing enhancements. In the other case, Aaron Juarez–Gomez (“Juarez–Gomez”) seeks review of two of the six counts of which he was convicted and also argues that the district court erred in the application of several sentencing enhancements in determining his sentence of 390 months' imprisonment.

For the reasons set forth below, we affirm the judgment of the district court in each case.

I

Sergeant Todd Marshburn, an officer with the Raleigh, North Carolina Police Department, received a tip from an informant regarding a man selling cocaine in the Raleigh area. Upon Sgt. Marshburn's request, the informant introduced another individual, the confidential informant (“CI”), to the suspected drug dealer. The CI arranged to meet the suspect at a Burger King restaurant to purchase 14 grams of cocaine.

At the time of the arranged meeting, Juarez–Gomez arrived at the Burger King driving a yellow, four-door Chevrolet S–10 truck with a personalized, North Carolina license plate that read “GOMEZ.” ¹ The CI purchased 13.7 grams of cocaine from Juarez–Gomez for $500 and took Juarez–Gomez's phone number to arrange future meetings directly.

The next day, the CI contacted Juarez–Gomez and asked to purchase another 14 grams of cocaine. Juarez–Gomez agreed to make another sale in the parking lot of a grocery store. Juarez–Gomez arrived at the parking lot in the same yellow truck and exchanged 14.1 grams of cocaine for $500 with the CI. During this meeting, the CI asked Juarez–Gomez if he was able to sell a solid piece of cocaine rather than powder cocaine. Juarez–Gomez indicated that he had only powder cocaine but provided the CI with a small sample of crack cocaine. Following the drug transaction, Raleigh Police Detective Jeffrey Marbrey and other officers followed Juarez–Gomez, who eventually led them to a mobile home, where the officers observed the parked yellow truck adjacent to the trailer.

The following day, the CI arranged to purchase 28 grams of cocaine from Juarez–Gomez. The CI met Juarez–Gomez at a gas station, where Juarez–Gomez arrived in the same yellow truck. Juarez–Gomez exchanged 27.9 grams of cocaine for $900 with the CI, who asked Juarez–Gomez to sell him greater quantities of cocaine, stating that he had “lots of money” and did not want to have to meet every day to purchase smaller amounts. Juarez–Gomez told the CI that he would introduce him to his boss for that purpose.

Following the drug transaction, Detective Marbrey again followed Juarez–Gomez to the trailer and parked in a position that allowed observation of the road to the trailer. Detective Marbrey then made contact with the landlord of the trailer, and asked the landlord to call him when the yellow truck left the trailer.

The next day, the CI again arranged to meet with Juarez–Gomez to purchase two ounces of cocaine for $2,000. About one hour before the meeting, the landlord called Detective Marbrey and informed him that the yellow truck had left the trailer. Juarez–Gomez arrived at the location of the drug sale in the same yellow truck, entered the CI's vehicle, and began speaking with the CI. Upon the CI's signal, officers took both men into custody and seized two ounces of cocaine, one gram of crack, and an additional small amount of powder cocaine from the headliner of the yellow truck.

Following the arrest, police officers approached the mobile home and knocked on the door. A.G., a minor later revealed to be Juarez–Gomez's son, answered the door and granted officers permission to enter the trailer. At that point, officers noticed another man in the trailer, Erasto Gomez–Jimenez. At the same time, Pedro Gomez–Jimenez (“Pedro”) fled the trailer into the surrounding woods, but was pursued and apprehended by police.

A.G. then consented to a search of the trailer for narcotics. Officers conducted a cursory search of the trailer for safety and observed, in plain view, digital scales, clear plastic bags, and a pistol. Officers then obtained a search warrant and conducted a full search of the trailer. Among other things, officers found over 700 grams of crack cocaine, a ledger of drug sales, pictures of Pedro posing with firearms, a small amount of marijuana, five kilograms of powder cocaine (some in brick form), several cell phones, several firearms, 1615 grams of liquid cocaine, and over $55,000 cash. Officers also found a rental receipt for the trailer in A.G.'s wallet and an electric bill for the trailer bearing Erasto's name.

A cooperating witness (“CW”) provided officers additional information regarding the drug activities of Juarez–Gomez, Pedro, and Erasto. The CW stated that he engaged in a number of drug transactions with Pedro and Erasto together, and that A.G. attended several of these drug deals. The CW further stated that he met Pedro and A.G. at a storage facility where Pedro was extracting cocaine base from liquid cocaine with A.G.'s assistance.

Juarez–Gomez, Pedro, and Erasto were then named in a seven-count indictment filed in the Eastern District of North Carolina. Count One charged all three men with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. Counts Two through Five charged Juarez–Gomez with distribution of a quantity of cocaine on four separate dates in violation of 21 U.S.C. § 841(a)(1). Count Six charged all three men with possession with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine and aiding and abetting the same in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Seven charged Juarez–Gomez with being an alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) & 924.

Without the benefit of a plea agreement, Pedro and Erasto pleaded guilty to Counts One and Six.² Juarez–Gomez pleaded not guilty to all counts and proceeded to a trial by jury, where he was found guilty of Counts One through Six and not guilty of Count Seven.

The United States Probation Office prepared a presentence investigation report (“PSR”) for each defendant. In Erasto's PSR, the probation officer concluded that he was accountable for 8,463.62 grams of cocaine and 732.15 grams of cocaine base, resulting in a base offense level of 34. The probation officer applied a two-level enhancement for possession of a firearm pursuant to section 2D1.1(b)(1) of the United States Sentencing Guidelines (the “Guidelines”). Another two-level enhancement was applied for the use of a minor under Guidelines section 3B1.4, but three levels were subtracted under section 3E1.1(b) for acceptance of responsibility, giving Erasto a total offense level of 35.

The probation officer concluded that Erasto had one criminal history point, resulting in a criminal history category of I. Based upon the total offense level of 35 and criminal history category of I, the probation officer concluded that the Guidelines recommended range of imprisonment was 168 to 210 months. Erasto objected to the two-level enhancements for possession of a firearm and for use of a minor.

At his sentencing hearing, Erasto argued that there was no evidence of A.G.'s participation in the conspiracy beyond his presence at the trailer, which he argued was insufficient to warrant the enhancement for use of a minor. In response, government counsel argued that the use of a minor enhancement applied because A.G. had paid rent on the trailer, accompanied Erasto to drug deals, and lived in the trailer with Erasto where the drugs and firearms were seized. The district court concluded that Erasto took “an affirmative act to involve a minor in the offense charged,” specifically having A.G. accompany him on drug deals. (J.A. No. 12–5030 157–58.) In overruling Erasto's objection, the district court stated that the facts presented were enough to allow the court to draw a reasonable inference that Erasto used A.G. in the commission of his offenses and that A.G.'s involvement was more than mere presence.

Erasto's counsel further argued that the only evidence linking him to the firearms found in the trailer was his presence at the trailer when he was arrested. The district court concluded that the enhancement applied because in addition to his presence in the trailer at the time of his arrest, the energy bills for the trailer were in his name.

The district court then considered the...