United States v. Gonzalez

• Decision Date: 22 September 2022
• Docket Number: 22-1242
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHN GONZALEZ, Defendant-Appellant.

No. 22-1242

United States Court of Appeals, Seventh Circuit

September 22, 2022

NONPRECEDENTIAL DISPOSITION

Submitted September 15, 2022

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-CR-00123(1) Manish S. Shah, Judge.

Before FRANK H. EASTERBROOK, Circuit Judge, THOMAS L. KIRSCH II, Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit Judge.

ORDER

John Gonzalez, previously convicted of a felony, purchased a gun from an undercover police officer. A jury found him guilty of unlawfully possessing a firearm, 18 U.S.C. § 922(g)(1), and he was sentenced to 27 months in prison. Gonzalez filed a notice of appeal, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Gonzalez has not responded to the motion. See CIR. R. 51(b). Counsel explains the nature of the case and addresses the potential issues that an appeal of this kind might be expected to involve,

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and because the analysis appears thorough, we limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

Gonzalez attended a gun-rights rally where he met a man who was secretly an FBI informant. The two discussed how Gonzalez could acquire a firearm even though he was barred from possessing one because of his two-decade old felony conviction for attempted homicide. Gonzalez arranged to purchase a gun from one of the informant's contacts, who was really an undercover police officer. Gonzalez bought a gun from the officer in a hotel room, and the government charged Gonzalez with violating § 922(g).

Gonzalez made two relevant pretrial motions. First, he asked the district court to order the government to disclose the informant's identity and provide other information about him, such as his date of birth or social security number. Gonzalez wanted this information to find evidence he could use to impeach the informant's reliability. The government responded that it would disclose the informant's identity at least 30 days before trial but that Gonzalez did not have a right to the other information, and the court agreed on both counts. Second, Gonzalez filed a motion in limine to bar references to his YouTube channel at the trial because of the risk of unfair prejudice. See FED. R. EVID. 403. The channel included several videos of him shouting vulgarities at police officers. The court denied the motion but noted its ruling was not definitive: "[W]e'll have to see how it plays out, and I'll make a ruling during trial."

At trial, two references to Gonzalez's YouTube channel occurred during the government's case-in-chief. First, the government called the undercover officer (the seller) and the case agent and through them introduced recordings of conversations Gonzalez had with the informant and undercover officer. In some, Gonzalez mentioned his channel. Second, the case agent testified that he identified Gonzalez's voice on the recordings based on videos from the channel. Gonzalez did not object to either mention.

Other evidence entered against Gonzalez included his phone records and records from Google, both of which the government had subpoenaed; Gonzalez had not filed a motion to suppress or to exclude the evidence. The government did not call the informant-whose identity it had, by then, disclosed-and Gonzalez later declined to do so, too.

Gonzalez testified in his defense. He described his YouTube videos as "documentaries" in which he "tr[ied] to educate the community [about] their rights." He also testified to facts supporting an entrapment defense. (Because the district court had allowed him to raise this defense, the government had to prove either that

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Gonzalez was predisposed to commit the crime or was not induced by a government agent. United States v. Mayfield, 771 F.3d 417, 439-40 (7th Cir. 2014) (en banc).) Gonzalez said that the government induced him to purchase the gun when he otherwise would not have done so because the informant promised him a "waiver" from laws prohibiting his possession of a firearm. (As he conceded on cross-examination, the possibility of a waiver is not discussed in any of the recorded conversations.)

After this testimony, the government moved to admit portions of certain YouTube videos, arguing they impeached Gonzalez's testimony and showed his predisposition to purchase a firearm. Over Gonzalez's renewed Rule 403 objection, the district court concluded the videos could be probative of, among other things, his predisposition for possessing a firearm. The risk of unfair prejudice did not require exclusion, the court explained, because Gonzalez had discussed the videos in detail on direct examination. When questioned about the videos on cross-examination, Gonzalez denied wanting a gun to protect himself while making them.

Nevertheless, the prosecutor stated in closing argument that Gonzalez wanted one "for protection" and "had to re-strategize his confrontations with law enforcement" that the videos depicted. Gonzalez did not object to these remarks. The jury, which the district court instructed on the entrapment defense, found Gonzalez guilty, and the court later denied his motion for judgment of acquittal.

At sentencing, the district court applied a two-level adjustment to Gonzalez's offense level under the Sentencing Guidelines based on its conclusion that he committed perjury and thus obstructed justice. U.S.S.G. § 3C1.1. The court found that Gonzalez lied about the informant's promise of a waiver to strengthen his entrapment defense. (In reality, the court found, Gonzalez believed the seller was a "shady arms dealer," and he "plainly accepted and understood that the purchase .. was under the table.") Moreover, because Gonzalez understood the details of purchasing a gun and his prohibited status, the court found that the lie was willful. With that adjustment, Gonzalez faced a guidelines range of 21 to 27 months' imprisonment.

The district court sentenced Gonzalez at the high end of the guidelines range based on several factors: Gonzalez's unlawful possession of a gun showed disrespect for the law and was dangerous because he often confronted police; he had a violent, though remote, criminal history; and he required specific deterrence. The court noted Gonzalez's expressions of remorse and positive record in prison as mitigating factors.

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Counsel first considers challenging the constitutionality of § 922(g)(1) as applied to Gonzalez and concludes that the...