gonzalez usa brief re en banc rehearing

7/28/2019 Gonzalez USA Brief Re en Banc Rehearing

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UNITED STATES OF AMERICA,

Plaintiff-Appellee:

v.

LUIS EMILIO GONZALES,Defendant-Appellant.

On Appeal lfrom the United States Dismct Courtfor the Eastern District of Washington

D.C. No. CR-03-02059-EFS (Hon. Edward F. Shea,DistrictJudge),

BRIEF FOR THE UIP1XTED STATESRECOIVP~h73D~GXEmMlVG EN BANC

JAMES A. McDEVITTUnited States AttorneyEastem District of WashingtonJAMES P. HAGARTYAssistant United States AttorneyEastem District of WashingtonELIZABETH A. OLSON

Attorney, U.S. Department of JusticeCriminal Division, Appellate Section

950 Pennsylvania Avenue NW #I264NTashington, D.C. 20530(202) 305-0954


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PageTABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.

.TPBLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

ST-ATEMENTOF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. Following A Traffic Stop. Officers Find Marijuana. Metha~n~he t amine ,

and Firearns in the Defendant's Cw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. The Defendant Is Indicted and Pleads Guilty To Possession ofa

Firearm by a Prohibited Person and Possession ofa Stolen Fi ream.. . . . . . . . . . . . . . . . . . . . .and is Sentenced to 57 Months' Imprisonment 3

ii C. The Defendant Appeals the Firearrn Enhancement and Criminal Histor?,I--: Point for His 2002 Conviction for Driving with a Suspended License . . . 5; I

;1. . . . . . . . . . . . . . . . . . . . . .A A. Frameworkfor Computing Criminal History 9

I B, TT'illianzs Failed to Take Into Account 84A1.2(b) and Related. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Commentary 10

1-1IJ C. He7.rza7zdez-He7.1zmdez Does Not Conflict with Willici7n~. ut the

Cases Talcen Together Lead to an Absurd Result . . . . . . . . . . . . . . . . . . . 12r;.j. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .CONCLUSION 15

I 'II Ii . 1 CERTIFICATE C1F COMPLIANCE, ,! I

I I-1CERTIFICATE OF SERVICE


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CASES

. . . . . . . . . . . . . . . . . . . . . . . .a741v. Massanari, 266 F.3d 1155 (9th Cir. 200 1) 9. . . . . . . . . . . . . . . . . . . . .

Morton v.De Oliveira, 984 F.2d 289 (9th Cir. 1993) 9. . . . . . . . . . . . . . . . . . . . . .~zitedStates v.Ellis, 241 F.3d 1096 (9th Cir. 2001) 5

United States v. Henla1zdez-He1-17a1zdez,431 F.3d 1212 (9th Cir. 2005) . . . passini. . . . . . . . . . . . . . . . .izited States v. J O ~ T I S O T Z ,43 F.3d 12 11 (8th Cir. 1995) 11

U?litedStates v. r;Yillia77zs,291 F.3d 11 80 (9th Cir. 2002) . . . . . . . . . . . . . . passim. . . . . . . . . . . . . . . . . . . . .~zitedStates v. You~zg,420 F.3d 915 (9th Cir. 2005) 9

STATETES,RLTIZESA h 3 GLTDEL3131WS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8U.S.C.$922(g)( l ) 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18U.S.C. $924(c)(l)(A)(i) 3.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8U.S .C.922( j ) 3Fed.R.App. P. 35(a)(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..S.S.G.$2K2.1 3 , 3U.S.S.G. 5 4A l . l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimU.S.S.G.$4Al.l,cormnentn.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11U.S.S.G. 54A1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..S.S.G. $4A1.2,commentn.2 11U.S.S.G. 5 4A1.2(c)(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

ii


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IN THE U~T.TEDSTATES C0~; f r .TO][;.&PEALSFOR THENNTI-ICIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

V.

LUIS EMILIO GONZALES,

Defendant-Appellant.

On Appeal fi-om the United States District Courtfor the Eastern District of Washington

D.C. No. CR-03-02059-EFS (Hon. Edward F. Shea, DistrictJudge)

BRIEF FOR THE LWITED STATESG EN BMYC

STATEMEYTOF THE ISSLEIn calculating the defendant's sentencing guidelines range, the district court

assessed one criminal history point for the defendant's 2002 conviction for drivingwith a suspended license, a conviction for wllich the defendant received a suspendedsentence of 30 days. The defendant appealed, and oral argument was heard on July24,2006.

On Septeniber 19, 2006, the Court directed the parties to "file simultaneous1


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briefs setting forth their respective positions on whether this matter should be reheard

enbanc." The order further directed the parties to"address U7zifedStatesv. ?Villia~?zs,291 F.3d 1180(9th Cir. 2002) @er curiarn) (l~oldingthat a conzpletei'ysuspended six-month sentence constitutes a 'term ofjmnprisonnient of at least thirty days' underU.S.S.G.5 4A1.2(c)(l)and hence must be counted in thedefendant's criminal historyscore), and Ulzited States v. Her?za~zdez-_He~7zarzdez,431 F.3d 1212 (9th Cir. 2005)(holding that a partially suspended 90-day sentence does not count toward thedefendant's crininal history score)."

STA'JfERKE2VT OF FACTSA. Follourhg A Traffic Stop. Officers Find Marijuana. Methamphetamine. andFirealms in the Defendant's Car

On March21,2003, followinga traffic slop of the defendant's vehicle, officers

of tlie Yaltinia Police Department observed marijuana in plain view around thedriver's seat. The defendant was arrested and, in a search of the vehicle incident tothat an'est, officers discovered a gym bag containing a loaded fiream andniethamplietanline. A further inventory search of the vehcle uncovered twoadditional firearnls: one of which was determined to be stolen. PSR 7 17 ,18.

The defendant admitted that the substance found in the vehicle wasmetllan7phetanline: that the drugs were his, and that he sold drugs. He said anotherindividual had "fi-onted" him 1.5 ounces ofmethamnphetanline, that hehad sold some


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of it and used some ofit,and that the methamphetamine the officers..foundin the gymbag was what was left of the 1.5 ounces. The defendant said that he was going tomeet the person w l ~ o ad fronted him the metl~amphetamineto pay him for thosedrugs and to purchase more. PSR 7 19,20.

The defendant also admitted that all the firearms in the vehicles were his, andthat he always carried gun s. He identified each gun by brand and caliber, and said hehad obtained one ofthe firearnls at a crack house and that he knew it was stolen. PSR7 19. The defendant admitted that he was a convicted felon.13. The Defendant Is Indicted and Pleads Guilty To Possession of a Firearm by a

Prohibited Person and Possession of a Stolen Firearm. and is Sentenced to 57hilon'cfis' In?lsrisonmentOnMarch 18,2003: a grandjury returned an indictment charging the defendant

with possession of a f i ream by prohibited person, in. ~ ~ i o l a t i o nof 18 U.S.C.922(g)(l) (Count 1), possession of a firearm in furtherance of a drug t r a sc l t i n gcrime, in violation of18U.S.C. $924(c)(l)(A)(i) (Count2), and possession of a stolenfirearm, in violation of18 U.S.C. 5 9220') (Count 3). CP 1; ER 1-3. On September10,2003, the defendant pleaded guilty to Counts 1 and 3. CP 42; ER 39-50.

The probation office prepared a presentence investigation report("PSR).

Pursuant to U.S.S.G. 521U.l (a)(b), the PSR began with a base offense level of 14,and added two levels because the offense involved three firealms (see2K2,l(b)(l)(A)), two levels because one of the firearms was stolen (see

3


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52f(Z.1 (b)(4)), and foar levels because tl2e defendant used or possessed the firearmin co~lnectionwith another felony offense (see 92 K2 .l (b)(5)). The PSR subtractedthree levels for acceptance of responsibility, resulting ill a total offense level of19.The PSR determined that the defendant had 12 criminal hstory points, putting himin criminal l i s to~ycategory V: based on several prior convictions: including a 2002conviction for third degree driving with a suspended license.'

The district court (Edward F. Shea, J.) held a sentencing hearing on December17 , 2003. ER 51-80. At sentencing, the district court overruled the defendant'sobjections to the application of a 4-level enhancement for possession of a firearm inco~rnectionwith another felony offense, and to the inclusion ofa crininal historypoint for his 2002 conviction for driving with a suspended license. ER 62. The courtsustained the defendant's objections to the counting oftwo other prior con'irictions- each carrying one crirniilal hstory point - on the ground that defendant had notbeen represented by counsel in those cases. The court calculated an adjusted offense

level of19 and a crininal history category V based on 10 criminal history points,which produced a guidelines range of57-71 months. The court imposed a sentenceof57 months. ER 77.

I The 12 criminal histoly points include two points assessed becausethe instant offense was conlinitted less than two years following the defendant'srelease from imprisonnlent. See PSR 7 115; U.S.S.G. $4Al l(e).


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C. TheDefendant A~ueals the Firearm Enl~a~lcenientand CriminalHistory Pointfor His 2002 Conviction for Driving with a suspended LicenseThe defendant appealed his sentence, arguing that the district court erred 111

concluding that the defendant possessed a firearm"in connection with" anotherfelony offense, and that the court erred in assessing a criminal listory point for thedefendant's 30-day suspended sentence for his 2002 conviction for driving with a

suspended license.

As to the first issue, the governlent noted that the defendant admitted hewas selling metllan1phetamine, and cited numerous decisions ofhis Court holdingthat the presence ofa firearm in a car witlin easy reach of a defendant who isengaged in felonious conduct pemkts an inference that tlie fiream bad somepotential emboldening role in the felonious conduct. See Gov't Br. 7 (citing, interalia, Uni~ed tales v.Ellis,241 F.3d 1096, 1099 (9th Cir. 2001)). The govemnentmaintained that- the evidence was tl~ereforesufficient to support the district court'sfactual finding that the defendant possessed the firearm in connection with anotherfelony.

As to the second issue, the gove~mnentargued the that district court hadproperly relied on this Court's binding circuit precedent in United Statesv.MTilliar~zs,291 F.3d 1180 (9"Cir. 2002). Willia7lzsheld that a completelysuspended six-month sentence constitutes a "te~rnofimprisonn~entof at least


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ofin~prjsonnlent"under 54A 1.2(c)[1).Despite the now-advisory status of the Guidelines, en banc rehearing is

wall-anted to correct this interpretation of the sentencing provisions because theissue arises with some frequency and can only be corrected by the en banc court.

r n @ - r n N TIn assessinga crilizinal history point for Gonzales's 2002 conviction for

driving with a suspended license, the district court- as it was obligated to do-

followed this Court's binding precedent in Williams. At the sentencing hearingand in its initial brief to this Court, the gove~nmentalso relied on Willianzs toargue that the criminal history point was properly assessed.

Upon closer inspection of the Vrillia77zsdecision, however, the govemnentbelieves that V7ilEia7~zswas incorrect on this point, and that a sentence for arnisdenieanor listed in 54A 1.2(c)(l) should count towards a defendant's crin-inalhstory only if the non-suspended portion ofthe sentence imposed is at least 30days (or under two otlier circunistancesnot relevant to this case).2 The analysis inF$llia7?zs is flawed because it focuses only on 5 4A1.2(a)(3), and fails to accountfor other provisions of the Guidelines and commentary that indicate a totally

2 Under 4A1.2(c)(l)),a sentence for the listed offenses also counts ifthe sentence was to a tern?of probation of at least one year, or if the prior offensewas similar to the instant offense (regardless of the sentence imposed). Those twocircun~siancesare not at issue in this case.


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sl~spended .ent.encedoes not. constitute a sentence ofa "term ofi~nprisonment"under 4A1.2(c)(l).

\+%ether this issue nieets the high standards for en banc reconsideration isless clear. First, the decisions in 1;1rillia7~zsand Her~za~zdez-Henzandezare notdirectly in conflict, and thus en banc rehearing is not "necessary to secure ormaintain unifornity of the court's decisions." Fed. R. App. P. 35(a)(l). Second,because the sentencing guidelines are now advisory rather than mandatory, andbecause the issue only affects a single criminal hstory point, this case may notclearly involve "a question of exceptional inzportance" sufficient to warrant enbanc rehearing.

Nevertheless, the government believes that Viillia7rzs is incorrect withrespect to its treatment of suspended sentences for certain misdemeanors.Although the guidelines are now advisory, they can and should continue to play a

central role in sen~encing,and it remains critical that the guidelines range iscalculated coi~ectly.~The governlent believes this issue is of sufficientimportance, and arises with sufficient frequency, that the error should be

3 Without the point for his 2002 conviction, the defendant would beassessed 9 crininal histoly points rather than 10, which would result in aaidelines range of 46-57 months rather than 57-71 months.,


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cm-ected. See, e.p, Li?:l!ed S!~!r?!esi .Young:4420F.?d 915, 918 (9th Cir. 2@05).4Because tlie error in Willianv can only be col-rected by the en banc Court;

rehearing en banc is appropriate. See Hart V. Massa7za;r-i,266 F.3d 1 155, 1171(9th Cir. 2001) (''Once a panel resolves an issue in a precedential opinion, the

matter is deemed resolved, unless ovellvled by the court itself sitting en banc, orby the Supreme Court."); IMo~~to~zv. De Olivei7ea, 984 F.2d 289, 292 (9th Cir.1993) ("[Olnly the court sitting en banc may overrule a prior decision of thecourt.").

A. Fralneworlc for Computing Crimi~~alHistorySection 4A1.1 of the Sentencing Guidelines instructs a sentencing court to

assess crirninal history points, based on a defendant's prior criminal sentences,including the following:

(a) Add 3 points for each prior sentence ofiniprisonment exceedingone year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at leastsixty days not counted in (a),

(c) Add 1 for each prior sentence not counted in (a) or (b), up to a

4 The issue has also arisen in cases that did not result in publishedopinions. See, e.g, United States v. Vale~zcia-Espi~zdola:No. 04-30293; U~zitedStates v. Sa7adoval-Gutierrez,No. 03-30455.


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total of4 points for this item.

Section 4A1.2 defines "prior sentence" and "sentence ofimnprisonnlent." Asrelevant here, subsection (a)(3) notes that "[a] conviction for which the impositionor execution ofsentencewas totally suspended or stayed shall be counted as aprior sentence under 5 4Al.l(c)." Subsection (b)of84A1.2 defines "sentence ofimprisonment":

(1) The telm "sentence of in~prisonment"means a sentence ofi~lcarcerationand refers to the maximum sentence inlposed.(2) If part ofa sentence of imprisonment was suspended, "sentence

of impliso~unent" refers only to the portion that was notsuspended.

Finally, subsection (c) provides that sentences for certain prior offenses are

excluded from the criminal hstory computation. Subsection (c)(l) provides:(1) Sentences for the following prior offenses and offenses similar tothem, by whatever name they are Icnoum, are counted only if(A)

thesentence was a term.of probation of at least one year or a ternofimprisonnient ofat least thirty days, or (B) the prior offensewas sinxilar to an instant offense:

Disorderly conduct or disturbing the peace

Driving without a license or with a revoked or suspended license

B. Mrilliams Failed to Talte Into Account $4A1.2(b) and Related CommentaryIn Willianzs: the defendant challenged the inclusion of his prior conviction


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hr.rinlil~al isc.17ief in his crimkal l~istoryscore, argu,ing that the offense wassimilar to disorderly conduct. 291 F.3d at 1195. The Ninth Circuit held that theexclusion in 3 4A1.2(c)(l) did not apply because the defendant had beensentenced to a suspended six-month tern1ofimprisonme~~tfor his criminalmischief conviction. The court reasoned that, "[elven thougl~the sentence wassuspended, the definition of 'prior sentence' in the Guidelines includes suspended

sentences for convictions that receive one criminal hstory point each," 291 F.3d at1 195 (citing 5 4AlV2(a)(3)).

Although the Villianzs court was correct that the defendant's suspendedsentence qualified as a "prior sentence," that should not have been the end of theinquiry because, with respect to the misdemeanor offenses listed in 5 4A1.2(c)(l),"[tlhe real issue is not whether [the suspended] sentence is a 'prior sentence,' butrather whether or not it is a 'countable' sentence under the Guidelines." U7zifedStates v. Jolznsorz, 43 F.3d 1211, 1214 (8th Cir. 1995) (citing U.S.S.G. 5 4Al.1comment n.3 ("Se~itencesfor certain specified non-felony offenses are countedonly if they meet certain requirements. See 5 4A1.2(c)(l).")). As 5 4A1.2(c)(l)nukes clear, some prior sente~lcesare counted, and some are not.

Prior sentences for the nlisdenieanors listed in 5 4Alq2(c)(1)are includedwhere: inter alia, they resulted in a sentence that was "a tern ofimpriso~rmentof atleast 30 days." Section 4A1.2 does not define "term of imprisonment"; however,


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does stat^: that ''se.ntence nf in~griLsor~~-errt"means '-'a sentence ofIl~carcerationand refers to the maximnun1sentence iniposed:" and also states that if part of.thesentence is suspended or stayed, "sentence ofimprisomiient" refers only to theportion that is not suspended. U.S.S.G. 5 4A1.2@)(2).' Consistent with5 4A1.2(b), the conunelllary also states that ''[t]o qualiQ as a sentence ofiniprisonment, the defendant must have actually served a period ofimprisonment

. 5 4A1.2, comnent. (n.2).on such sentence * * * ':For the purpose ofinterpreting the exclusion in 5 4A1.2(c)(l), the

govenxllent can discern no reason to distinguish "a sentence [that] was * * * atenn of imprisonment" froma"sentence of imprisonment." Ifa "sentence ofilliprisonnlent" requires that a defendant actually serve a period ofimprisonment,that requirement surely applies as well to a sentence to a "ten11 of imprisonment." 'C. Her7za7zdez-He7-7zn7zdezDoes Not Conflict with Willia7?zs.But the Cases

Talcen Together Lead to an Absurd ResultIn He1-1za7zdez-Her.1zai.zdeqthe Ninth Circuit considered the effect of a prior

con~rictionfor whicl~a patially suspended sentence was imposed. In that case, the

5 In addition, 5 4AIq2(a)(3)directs that a totally suspended sentence-regardless of the length oftime suspended- shall be counted as a prior sentenceunder tj 4Al. l(c), which assesses one point for each "prior sentence." 111contrast,section $9 4Al. 1(a) and (b) assess points for each "prior sentence ofi77zp~~iso7~1~ze7zt))(emphasis added). This suggests that, wllile a totally suspendedsentence is a "prior sentence," it is not a '"p~iorsentence ofimnprisonment."


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defendant received a 90-day sentence: 87 days suspended: for the offense of

tlxeats to do hanll. 431 F.3d at 1220. The court held that the sentence in~posed"does not count as a prior sentence under $4A1,2(c)(l)(A) [i.e., a term ofinlpriso11111entofat least 30 days] because his sentence was for only three days,"431 F.3d at 1220 (citing 4A1.2@)(2)). In reaching this conclusion, the Courtrelied on $ 4A1.2@)(1),which defines"sentence of imprisonment" as "a sentenceof incarceration,"and 5 4A1.2@)(2), which directs that "[ilf part ofthe sentence ofinlprisoml~entis suspended, "sentence of imprisonment' refers only to the portionthat was not suspended."

The Ile1-1zarzdez-He1-7~undezCourt acknowledged that its decision might-.

"appear to be at odds" with rYillianzs,but distinguished flTillia7zs on the groundi

that the defendant's sentence in that case was "'totally suspended' and-.!,

\, $4A1.2@)(2)did not apply." 431 F.3d at 1220. The court continued: 'Where, as11--I here, the sentence was partially suspended, 8 4A1.2(b)(2) prevents the three-day

, i 'sentence ofirnprisonnlent' konl counting" as a term of imprisonment of30 daysor more under 4A1.2(c)(l). Id. I-Iaving co~lcludedthat the prior sentence wouldI

- , be excluded if it was"similar" to the nlisden~eanorslisted in 4Al.2(c)(l), tlle!i Court pi-oceeded to co~lsiderthat question, ulti~nately ~oldingthat the offense of;I

.

I "threats to do hanxl"was not similar to "disorderly conduct," and therefore that the. -

.. .. a

, I . prior sente~lcewas not excluded. 431 F.3d at 1220-21.6


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$4~1 .2 ,and tlms are not in direct conflict. everth he less, tile cases lead toaspm.et~-icalconsequences. Under Tilliai~zs,a defendant convicted ofdisorderlyconduct 1v11o received an entirely suspended 30-day se~ltencewould receive acriminal history point. UnderHen7a7zdez-Hei*izarzdez,a defendant convicted of thesame offense who received a 30-day sentence with 10 days suspended - and thuswas actually ordered to serve 20 days-would lzot receive a crinlinal history point.Because a defendant receiving a totally suspended sentence should generally be

considered as less culpable, or as posing a lesser risk of recidivism, than a

defendant who receives only a partially suspended sentence and actually servestime, this result is out of balance. The Court should embrace such as~ametryonlyifthe Guidelines' unequivocal language compels it. In this case, it does not.Instead, reading the provisions of$4A1 as a whole supports the oppositeconclusion, i.e.,that a covered nlisdemeanor should count to~va-da defendant'scriminal history points only if the defendant was ordered to serve at least 30 days.


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I

It is appropriate for the Court to rehear this case en banc, overrule l??illiams1 with respect to its treatment of suspended sentences for n~isdemeanorslisted in

:-7

-a 3

4A1.2(c)(l), and remand this case for the district court to resentence thedefendant, talcing into account an advisory guidelines range of46-57 months.

Respectfully submitted,

JAMES A. McDEVITTUnited States AttorneyEastern District of Washington

JAMES P. I-3VIGARTYAssistant United States AttorneyEastem District of Washington

Attorney, U.S. Department of JusticeCrinrillal Division, Appellate Section950 Pennsylvania Avenue hW #I264Washington, D.C. 20530 .(202) 305-0954

gonzalez usa brief re en banc rehearing

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