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  • United States v. Gonzales, 10th Cir. (2008)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Juan Gonzales' appeal of the denial of his motion to modify his sentence. Gonzales had pled guilty to drug and firearm charges and was sentenced to consecutive terms of 5 years each. He later filed a motion to modify his sentence based on retroactive sentencing guidelines amendments, but the district court denied it. The appeals court affirmed, finding that Gonzales was sentenced based on statutory mandatory minimums, not the guidelines, so the amendments did not apply to make him eligible for a sentence reduction. It therefore dismissed the appeal and allowed his attorney to withdraw.

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    Filed: 2008-10-29 Precedential Status: Non-Precedential Docket: 08-2134

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Juan Gonzales' appeal of the denial of his motion to modify his sentence. Gonzales had pled guilty to drug and firearm charges and was sentenced to consecutive terms of 5 years each. He later filed a motion to modify his sentence based on retroactive sentencing guidelines amendments, but the district court denied it. The appeals court affirmed, finding that Gonzales was sentenced based on statutory mandatory minimums, not the guidelines, so the amendments did not apply to make him eligible for a sentence reduction. It therefore dismissed the appeal and allowed his attorney to withdraw.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    11 views5 pages

    United States v. Gonzales, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Juan Gonzales' appeal of the denial of his motion to modify his sentence. Gonzales had pled guilty to drug and firearm charges and was sentenced to consecutive terms of 5 years each. He later filed a motion to modify his sentence based on retroactive sentencing guidelines amendments, but the district court denied it. The appeals court affirmed, finding that Gonzales was sentenced based on statutory mandatory minimums, not the guidelines, so the amendments did not apply to make him eligible for a sentence reduction. It therefore dismissed the appeal and allowed his attorney to withdraw.

    Copyright:

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    of 5

    FILED

    United States Court of Appeals


    Tenth Circuit

    October 29, 2008


    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    No. 08-2134
    (District of New Mexico)
    (D.C. No. 04-CV-2573-JC)

    v.
    JUAN GONZALES,
    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before McWILLIAMS, ANDERSON, and BALDOCK, Senior Circuit Judges.

    On December 28, 2004, a grand jury returned a four-count indictment in the


    United States District Court for the District of Colorado, which indictment, in
    count one, charged Juan Gonzales, the defendant, with being a felon in possession
    of a loaded firearm and ammunition in violation of 18 U.S.C. 922(g)(1); in
    count two, he was charged with possession with intent to distribute at least five

    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.

    grams or more of a mixture and substance containing cocaine base, in violation of


    21 U.S.C. 841(a)(1) and 841(b)(1)(B); in count three, he was charged with
    possession with an intent to distribute less than 500 grams of a mixture and
    substance containing a detectable amount of cocaine in violation of 21 U.S.C.
    841(a)(1) and 841(b)(1)(C) and 18 U.S.C. 2; and in count four, he was charged
    with carrying and possessing a loaded firearm in relation to and in furtherance of
    the drug trafficking crimes in counts 2 and 3 in violation of 18 U.S.C. 924(c).
    Shortly prior to trial, the defendant, through counsel, filed a motion to suppress
    evidence and to disclose the identity of a confidential source. On the morning the
    trial was to commence, the district court denied the defendants motion to
    suppress and the motion for disclosure of the identity of its confidential source,
    whereupon the defendant, pursuant to a plea agreement, entered a conditional plea
    of guilty to counts two and four. In his plea agreement, the defendant reserved
    his right to appeal the District Courts denial of his motion to suppress and his
    motion requiring the Government to disclose the identity of its confidential
    source. On March 29, 2006, the district court sentenced defendant to sixty
    months imprisonment on count two and sixty months imprisonment on count four,
    the two sentences to be served consecutively. The defendant filed a timely notice
    of appeal. On appeal, we affirmed in an unpublished opinion. United States v.
    Gonzales, No. 06-2112, 229 Fed. Appx. 721 (10th Cir. Apr. 16, 2007)
    (unpublished).
    -2-

    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
    -3-

    Commission pursuant to 28 U.S.C. 994(o), upon motion


    of the defendant or the Director of the Bureau of
    Prisons, or on its own motion, the court may reduce the
    term of imprisonment, after considering the factors set
    forth in section 3553(a) to the extent that they are
    applicable, if such a reduction is consistent with
    applicable policy statements issued by the Sentencing
    Commission.
    In connection with the Motion to Modify, it appears that on November 1,
    2007, the United States Sentencing Commission amended the Sentencing
    Guidelines and provided for a two-point reduction of ones base offense level in
    certain types of cocaine base offenses. The Government filed a response to
    defendants Motion to Modify in which it, inter alia, pointed out that the
    defendant had not been sentenced under the Guidelines, but was sentenced
    pursuant to statutes setting mandatory minimum sentences.
    On May 27, 2008, the District Court denied the defendants Motion to
    Modify his sentence, and the defendant now appeals the District Courts denial of
    his Motion to Modify. In this Court, the Federal Public Defenders Office was
    appointed to represent the defendant and it later filed an Anders Brief in this
    Court, concluding that the appeal was without merit and wholly frivolous.
    Anders v. California, 386 U.S. 738 (1967). By letter, the Government indicated it
    would file no response to defendants Anders Brief. A copy of defendants
    Anders Brief was served on the defendant who filed a pro se Response to
    Appellants Counsels Motion to Withdraw, Pursuant to 3582(c)(2) Appeal.

    -4-

    Our review of the record before us leads us to conclude, as the Government


    has argued, that the defendant was not sentenced under the guidelines, but
    pursuant to statute. Hence, the Sentencing Commissions retroactive application
    of a downward modification of the offense level for certain types of drug
    violations is irrelevant. The statutes provide for a mandatory minimum sentence
    control. Further, in our view, United States v. Booker, 543 U.S. 220 (2005) has
    no present application.
    Pursuant to Anders, this appeal is therefore dismissed and counsels request
    to withdraw is granted.

    Entered for the Court

    Robert H. McWilliams
    Senior Circuit Judge

    -5-

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