United States v. Gomez

• Decision Date: 26 September 2018
• Docket Number: No. 17-10690,17-10690
• Citation: 905 F.3d 347
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gilberto GOMEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

905 F.3d 347

UNITED STATES of America, Plaintiff–Appellee,

v.Gilberto GOMEZ, Defendant–Appellant.

No. 17-10690

United States Court of Appeals, Fifth Circuit.

FILED September 26, 2018

Joseph Andrew Magliolo, Esq., Emily Baker Falconer, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, Leslie Rachael Jones, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Kevin Blake Ross, Law Office of Kevin B. Ross, P.C., Dallas, TX, for Defendant-Appellant.

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Gilberto Gomez appeals his 652-month sentence imposed after his conviction by a jury of drug-trafficking and firearms offenses in violation of 21 U.S.C. §§ 841 & 846 and 18 U.S.C. §§ 924(c) & 2. On appeal, Gomez contends that the district court improperly enhanced his sentence by applying a two-level adjustment pursuant to U.S.S.G. § 3B1.1(c), which he claims is inapplicable here because he was not an "organizer, leader, manager, or supervisor" in the underlying criminal activities. He further alleges that the district court failed to adequately explain his sentencing or consider the 18 U.S.C. § 3553(a) sentencing factors. Gomez also argues that the district court erroneously believed that it could not consider the mandatory-minimum sentences it was required to impose in arriving at a sentence on the remaining counts and thereby fashioned an unreasonable aggregate sentence.

As explained more fully below, we REMAND the case for the limited purpose of determining whether the district court wishes to resentence the defendant in light of the Supreme Court's opinion in Dean v. United States .¹

I.

After an undercover investigation, Dallas Police Department officers executed a search warrant at Gilberto Gomez's home. The officers found various items of contrabands, including several kinds of illegal drugs, firearms, a large amount of cash, and items associated with drug distribution. Gomez and a codefendant, Felix Cantu, were then arrested at the scene. The Government charged Gomez and Cantu with conspiracy to possess with intent to distribute 500 grams or more of methamphetamine (Count 1); possession with intent to distribute 500 grams or more of methamphetamine (Count 2); possession of a firearm in furtherance of a drug-trafficking crime (Count 3); and possession with intent to distribute cocaine (Count 4). Additionally, the Government charged Gomez separately with another count of possession of a firearm in furtherance of a drug-trafficking crime (Count 5) and possession with intent to distribute marijuana (Count 7). The jury found Gomez guilty on all counts.²

Following the United States Sentencing Guidelines,³ the presentence report ("PSR") grouped the drug counts and assessed a base offense level of 34. Gomez also received a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a drug premises, and another two-level enhancement for being a leader or organizer of the offense under U.S.S.G. § 3B1.1(c). In total, the Sentencing Guidelines calculation yielded an offense level of 38 and criminal history category of III.⁴

Based on this information, the PSR concluded that Gomez's Guidelines range for the drug counts was from 292 to 365 months of imprisonment, noting that the methamphetamine charges (Counts 1 and 2) carried a statutory minimum of 10 years under 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A)(viii). On the firearms counts, the first offense (Count 3) carried a statutory minimum sentence of five years under 18 U.S.C. § 924(c)(1)(A)(i), while the second offense (Count 5) carried a statutory minimum of 25 years under 18 U.S.C. § 924(c)(1)(C)(i). In total, Gomez faced a mandatory-minimum sentence of 40 years. The mandatory-minimum sentences were required under § 924(c) to run consecutively to each other and any other sentence.

Gomez filed several objections to the PSR, including an objection to the enhancement for being a leader or organizer. And as to the firearms counts, he argued that imposing multiple consecutive sentences would violate his due process rights and his rights under the Eighth Amendment. The district court overruled the objections.

At the sentencing hearing, Gomez urged the district court to find a way—"in any ... shape[ ] or form for the Court, with the autonomy and authority ... inherent as an Article III judge"—to not "stack" the two firearms counts, which together amounted to a total sentence of 30 years. In response, the district court stated: "[T]he clear statutory language doesn't permit me to do that." After hearing from counsel and Gomez, the court imposed a 652-month aggregate sentence on all counts; this included 292 months on the drug offenses, which is on the low end of the Guidelines, and 360 months for the firearms offenses. The judge further remarked: "I find under the circumstances that the Guideline calculation is excessive, but I believe that's what I'm required to do by the statute." Gomez timely appealed. We discuss the issues below.

II.

We examine sentences for reasonableness by engaging in a bifurcated review.⁵ An appellate court must first ensure that the sentencing court "committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, ... or failing to adequately explain the chosen sentence."⁶ If there is no procedural error, the appellate court reviews the substantive reasonableness of the sentence under a deferential abuse of discretion standard.⁷

A.

First, Gomez argues that the district court erroneously found him to be an organizer or leader of the criminal offenses, thereby misapplying a two-level enhancement to his Guidelines offense level. He objected to the enhancement at his sentencing hearing and thus preserved this issue for appeal. We review this factual determination for clear error.⁸

Relevant here, § 3B1.1(c) of the United States Sentencing Guidelines provides for a two-level adjustment if the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than activity involving five or more participants or any otherwise extensive activity.⁹

In determining whether a defendant had a leadership role, a district court should consider the following factors:

[whether the defendant exercised] decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.¹⁰

In this case, Gomez avers that he was not a leader in the underlying offenses and that he and Cantu "worked together with equal responsibility and culpability." Specifically, Gomez claims that he did not recruit Cantu, that he did not exercise control over Cantu, and that Cantu acted independently and claimed the fruits of his own drug activities.

From the record, we find the district court's determination of Gomez's leadership status plausible. Evidence at trial established that Cantu sold drugs for Gomez and Gomez controlled Cantu in their activities. In return for living in Gomez's home, Cantu was available to assist Gomez as needed. Cantu testified that he "worked for" Gomez and that Gomez once described their relationship as "him being the chief and me being the Indian." Cantu admitted that he also sold drugs, particularly marijuana and cocaine, for his own profit. He stated, nevertheless, that there was an "understanding" that he would obtain these drugs from Gomez in order to "keep the money in the house."

Furthermore, the record shows that Gomez exercised extensive control over many aspects of the underlying offenses. Cantu testified that Gomez kept most proceeds from sales of methamphetamine, set the price for such sales, and sometimes pre-weighed the quantities of methamphetamine for sale. According to Cantu, Gomez was also involved in "cutting" and packaging the drugs, and arranged for the supply of marijuana.

Based on the evidence presented at trial, we conclude that the district court did not clearly err in applying the § 3B1.1(c) role enhancement. The court's finding is "plausible in light of the record as a whole."¹¹

B.

Next, Gomez alleges that the district court committed procedural error by failing to adequately explain the reasons for his sentencing and failing to consider the 18 U.S.C. § 3553(a) factors. Additionally, relying on Dean , Gomez argues that the district court was not fully aware of its discretionary authority under the Sentencing Guidelines on the counts not controlled by a mandatory minimum when arriving at a total sentence.

Because Gomez failed to raise these issues,¹² we review these claims for plain error.¹³ Plain error doctrine provides:

An appellate court may not correct an error the defendant failed to raise in the district court unless there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.¹⁴

1.

Generally, a sentencing court must "state in open court the reasons for its imposition of the particular sentence."¹⁵ It must also "set forth enough to satisfy the appellate court that [the sentencing court] has considered the parties' arguments and has a reasoned basis" for the decision.¹⁶

In the instant case, the district court stated that it had reviewed the PSR, the PSR Addendum, and Gomez's sentencing memorandum. It also adopted the PSR and recited the applicable Guidelines calculations. Because the district court sentenced Gomez within the Guidelines range on the...