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United States v. Gonzales, 10th Cir. (2008)
United States v. Gonzales, 10th Cir. (2008)
Clerk of Court
v.
JUAN GONZALES,
Defendant-Appellant.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
The parties waived oral argument, and this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P.34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
As indicated, the defendant pled guilty to counts two and four of the
indictment. Count two charged a violation of 21 U.S.C. 841(a)(1) and 21
U.S.C. 841(b)(1)(B). 18 U.S.C. 841(b)(1)(B) provides, inter alia, that the
penalty shall be imprisonment for not less than five years. Count four charged
the defendant with possessing a loaded firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. 924(b). 18 U.S.C. 924(c)(1)(A)
provides, inter alia, that the penalty therefor shall be not less than five years
which is to be in addition to the penalty provided for in 21 U.S.C. 841(b)(1)(B).
In this general connection, the defendant in the plea agreement stated that he
understood that as to count two, he could, inter alia, be imprisoned for not less
than five years and not more than 40 years, and that as to count four, he could be
sentenced to imprisonment for not less than five years which would be
consecutive to any other term of imprisonment. It was in this setting that the
District Court sentenced defendant to five years imprisonment on counts two and
four, to be served consecutively. As stated, on direct appeal, we affirmed the
sentence imposed by the District Court.
On March 1, 2008, the defendant filed in the District Court a pro se Motion
to Modify Term of Imprisonment pursuant to 18 U.S.C. 3582(c)(2) and a
Memorandum in support thereof. 18 U.S.C. 3582(c)(2) provides as follows:
(2) in the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing
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Robert H. McWilliams
Senior Circuit Judge
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