United States v. Longoria

• Decision Date: 05 May 2020
• Docket Number: No. 19-20201,19-20201
• Citation: 958 F.3d 372
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Martin Rogelio LONGORIA, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

958 F.3d 372

UNITED STATES of America, Plaintiff - Appellee

v.Martin Rogelio LONGORIA, Defendant - Appellant

No. 19-20201

United States Court of Appeals, Fifth Circuit.

FILED May 5, 2020

Jessica Carol Akins, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Kathryn Shephard, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant - Appellant.

Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.

GREGG COSTA, Circuit Judge:

Courts reduce the Sentencing Guidelines offense level by two points when defendants accept responsibility for their crimes. U.S.S.G. § 3E1.1(a). For offenses that score high enough (16 points or more), the government may ask the court to reduce the offense level by a third point if the defendant "timely" pled guilty so the government could "avoid preparing for trial." Id . § 3E1.1(b). We have long allowed the government to do what it did here: withhold the third point when the defendant seeks to suppress evidence, even though the hearing on that request is not a trial. United States v. Gonzales , 19 F.3d 982, 984 (5th Cir. 1994) (per curiam). The principal question in this sentencing appeal is whether we must still follow that law after an amendment to the relevant Guidelines commentary.

I.

A grand jury charged Martin Longoria with being a felon in possession of several firearms. Longoria moved to suppress the evidence, challenging the FBI’s warrantless search of his apartment where the guns were discovered. The district court denied the motion, concluding that Longoria’s wife consented to the search.

Instead of pleading guilty, Longoria asked for a stipulated bench trial to preserve his suppression challenge. The district court found him guilty based on the stipulation.

The presentence investigation report (PSR) calculated Longoria’s base offense level at 20 "because the offense involved several semiautomatic firearms with large capacity magazines." U.S.S.G. § 2K2.1(a)(4)(B). The PSR also recommended three enhancements. The PSR did not recommend a reduction for acceptance of responsibility because, according to the report, Longoria offered only a "vague," terse apology.

At sentencing, the district court overruled Longoria’s objection to his base offense level, agreeing with the PSR that the offense involved large-capacity magazines. On other issues, however, the court ruled in Longoria’s favor. It sustained his objection to a proposed enhancement for using a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). It also sustained, in part, Longoria’s objection to the withholding of the three-level reduction for acceptance of responsibility. Contrary to the PSR, the court "read [Longoria’s apology] as an acknowledgement of acceptance of responsibility" and granted the two-level downward adjustment. But the third point requires a motion from the prosecutor. U.S.S.G. § 3E1.1(b). The prosecutor explained she did not file that motion because Longoria forced the government to prepare for "a full-blown suppression hearing."

Those rulings resulted in a Guidelines range of 63 to 78 months’ imprisonment. The court sentenced Longoria to a prison term of 78 months. The judge noted this was a "relatively lenient sentence" given the objection she had sustained to the four-point enhancement for use in another felony, and she "would never go lower."¹

Despite seeking a stipulated bench trial to allow an appeal of the suppression ruling, Longoria now challenges only his base offense level and the government’s refusal to move for the third acceptance point.

II.

The base offense level of 20 was proper if Longoria’s felon-in-possession crime involved a "semiautomatic firearm that is capable of accepting a large capacity magazine." Id. § 2K2.1(a)(4)(B)(i)(I). A firearm meets that definition if it had attached to it, or was in close proximity to, "a magazine or similar device that could accept more than 15 rounds of ammunition." Id. § 2K2.1 cmt. n.2.

In applying this elevated base offense level, the district court relied on the FBI agent’s statement that five large-capacity magazines were attached to or near the semiautomatic firearms that Longoria possessed. We review the court’s finding—like all other factual determinations—for clear error. United States v. Moton , 951 F.3d 639, 644 (5th Cir. 2020). A finding is clearly erroneous only if we are "left with the definite and firm conviction that a mistake has been committed." United States v. Mata , 624 F.3d 170, 173 (5th Cir. 2010) (per curiam) (quotation omitted).

Longoria asserts that the agent’s statement is unreliable because it is "conclusory" and "not capable of evaluation as to reliability." Neither ground is persuasive. A sentencing judge "may properly find sufficient reliability on a [PSR] which is based on the results of a police investigation." See, e.g. , United States v. Vela , 927 F.2d 197, 201 (5th Cir. 1991) ; see also United States v. Rico , 864 F.3d 381, 386 (5th Cir. 2017). The statement of the FBI agent, who had first-hand knowledge of the search, easily fits that bill. And the statement asserts the concrete fact that the FBI seized "five high-capacity magazines ... either attached to a rifle or nearby to the recovered rifles" during the search.

Contrary to Longoria’s suggestion, he could have cross-examined the FBI agent or introduced other evidence to undercut the statement’s accuracy. See FED. R. CRIM . P. 32(i)(2) (providing that a sentencing judge "may permit the parties to introduce evidence on ... objections" to the PSR); see also U.S.S.G. § 6A1.3(a) ("When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor."). Indeed, Longoria tried to rebut the statement by arguing that a photo of his apartment he had taken before the search showed only handgun magazines, not clips that would trigger the elevated base offense level. To the extent this constitutes rebuttal evidence, the district court was entitled to credit the agent’s statement instead. See United States v. Barfield , 941 F.3d 757, 766 (5th Cir. 2019) ("It is proper for the district court to rely on a presentence report’s construction of evidence to resolve a factual dispute, rather than relying on the defendant’s version of the facts." (quotation omitted)).

Longoria fails to show that the district court clearly erred in relying on the FBI’s agent statement about what was found in the apartment. The base offense level for firearms that can accept large-capacity magazines was proper.

III.

That brings us to the question we mentioned at the outset: Was the government required to ask the court to award the additional point off for acceptance of responsibility? A defendant is eligible for the extra point if his offense level is at least 16 and the government files a motion:

stating that the defendant has assisted ... in the investigation or prosecution of his own misconduct by timely [giving notice] of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.

U.S.S.G. § 3E1.1(b).

We review the decision to withhold such a motion only for whether the government "considered an interest within [ section] 3E1.1." United States v. Halverson , 897 F.3d 645, 656 (5th Cir. 2018). As the government’s reason for withholding the motion was the "full-blown suppression hearing,"² the issue is whether the resources expended litigating a suppression motion are an interest the government can cite in withholding the third-point motion.

If we were writing on a blank slate, Longoria might have a compelling argument. Section 3E1.1(b) speaks of "trial," not pretrial hearings, and preparing for a suppression hearing usually requires less time and resources than trial preparation. Indeed, more circuits agree with Longoria’s position than with the one we have taken. Compare United States v. Rogers , 129 F.3d 76, 80–81 (2d Cir. 1997) (per curiam) (applying our rule), with United States v. Price , 409 F.3d 436, 443–44 (D.C. Cir. 2005) ; United States v. Marquez , 337 F.3d 1203, 1212 (10th Cir. 2003) ; United States v. Kimple , 27 F.3d 1409, 1414–15 (9th Cir. 1994) (all holding that the government cannot withhold the third point because the defendant sought to suppress evidence).

Even if a minority view, our precedent of course poses a problem for Longoria. One published decision is all it takes for stare decisis . Yet it is worth noting that here our precedent also has multiplicity on its side; for a quarter century we have repeatedly and "routinely affirmed the denial of a one-level reduction under [ section] 3E1.1(b) when the government had to prepare for a suppression hearing."

United States v. Silva , 865 F.3d 238, 244 (5th Cir. 2017) (per curiam) (citing United States v. Delaurier , 237 F. App'x 996, 998 (5th Cir. 2007) (per curiam); United States v. Cruz , 1999 WL 1067627, at *1 (5th Cir. Oct. 19, 1999) (per curiam); Gonzales , 19 F.3d at 984 ).

Longoria believes he has a way around this entrenched caselaw: "an intervening change in law." See Jacobs v. Nat’l Drug Intelligence Ctr. , 548 F.3d 375, 378 (5th Cir. 2008) (recognizing such a change as an exception to the rule of orderliness). He cites the following 2013 amendment to the commentary on the acceptance-of-responsibility Guideline: "The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal." U.S.S.G. supp. to app. C, cmt. to amend. 775 (2013). That example resolved a circuit split on whether "a defendant’s refusal to sign an appellate waiver is a legitimate...