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United States v. Gonzalez

United States Court of Appeals, First Circuit

May 15, 2017

United States of America, Appellee,
Samuel Lasalle Gonzalez, Defendant, Appellee.


          Alejandra Bird López for appellant.

          Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Howard, Chief Judge, Thompson, and Dyk, [*] Circuit Judges.

          THOMPSON, Circuit Judge.

         Samuel Lasalle González ("Lasalle") pled guilty to being a felon in possession of a firearm with an agreed sentencing range of thirty to thirty-seven months. But after the district court tallied all the points for what Lasalle did with that firearm--burgling a house then shooting a police officer as he tried to flee the scene--the court landed on a sentence of ten years, the statutory maximum. Lasalle calls foul, claiming the offense-level increases are invalid, his sentence is unreasonable, and his lawyer should have told him to back out of the deal. Finding only smoke but no fire to his claims, we affirm.


         On October 15, 2014, a grand jury charged Lasalle, a convicted felon, with knowingly and illegally possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he pled guilty to the charge shortly thereafter. So, we draw these facts from his plea agreement, the undisputed sections of the presentence investigation report ("PSR"), and the transcripts of his change-of-plea and sentencing hearings. United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015). Here's what happened.

         According to the plea agreement's Stipulation of Facts --these are facts that Lasalle agrees the government could prove beyond a reasonable doubt at trial--on October 8, 2014, two police officers responded to a call that a "suspicious unknown male" (who turned out to be Lasalle) was walking through the caller's backyard. When Lasalle saw the officers, he ran and the officers gave chase in different directions. One of the officers yelled, "Police, do not move." The second officer heard four or five gunshots, then found his patrol partner lying on the ground wounded. When he saw Lasalle approaching from the woods, the second officer commanded Lasalle to stop; when Lasalle ignored the command and continued to approach, the second officer shot Lasalle in the leg. Both the wounded officer and Lasalle were hospitalized.

         The PSR tells a more colorful tale. "Based on the Reports of Investigation and all other available information," some of the gunshots the second officer heard came from Lasalle's illegally-possessed firearm: he stopped when the first officer told him to, but rather than surrender his gun, Lasalle shot the officer in the jaw and again in the torso. Hours later, in an interview with a police officer at the hospital, Lasalle said that he found the gun (a revolver that police later discovered was stolen back in January 2014) on the side of the road; admitted that he broke into a house that night and stole some jewelry and frozen chicken because he was hungry and had no money; and admitted that he exchanged fire with the officers. (We note here that at the change-of-plea hearing, the government confirmed that the wounded officer would testify that it was Lasalle who shot him.) Although the only charge before the federal grand jury was illegally possessing the gun, Lasalle was charged in a Puerto Rico state court with attempted murder and aggravated burglary, among other crimes stemming from the events of that night. Lasalle's lawyer reports that sometime after the change of plea hearing but before his federal-court sentencing, Lasalle pled guilty to aggravated assault in the state court. The specifics of the resolution of the Puerto Rico charges are unknown, but Lasalle received a ten-year sentence.

         Now, in the plea agreement, the parties calculated that Lasalle's total offense level was seventeen, and recommended the court sentence Lasalle to thirty months in prison--a figure at the bottom of the proposed Guidelines sentencing range of thirty to thirty-seven months. The PSR calculated a significantly higher sentencing range after bumping up his offense level by twelve: (1) two more levels because the firearm was stolen, (2) four more levels because Lasalle possessed the gun in connection with another felony, and (3) six more levels because Lasalle injured a law enforcement officer in connection with the offense. All told, Lasalle's range was 108 to 135 months, though the PSR reduced the upper boundary of that range to 120 months because that is the statutory maximum sentence for the offense. See 18 U.S.C. § 924(a)(2); U.S. Sentencing Guidelines Manual § 5G1.1(c)(1) (U.S. Sentencing Comm'n 2014) [hereinafter "U.S.S.G."].

         Lasalle objected to the PSR's Guidelines calculations on essentially the same grounds he raises before us today (with a couple of notable exceptions that we will get to below), claiming the offense-level increases are invalid and their application violated his Sixth Amendment and due process rights. The judge reached the opposite conclusion. He then sentenced Lasalle to ten years' imprisonment, to be served concurrently with his ten-year state court sentence. This appeal followed.


         Lasalle seeks safe harbor for an armada of arguments. He claims: (1) the offense-level increase for using a stolen firearm is invalid because it does not include an element of mens rea, (2) all of the offense-level increases are invalid and violate his Sixth Amendment and due process rights because they are based on uncharged conduct not found by a jury or proven beyond a reasonable doubt, (3) the sentence is procedurally and substantively unreasonable, and (4) his attorney was ineffective for failing to advise him to back out of his plea agreement when it became clear that his sentence would far exceed the recommended range.[1] Finding we cannot give Lasalle safe harbor, we torpedo each of his arguments in turn.

         Mens Rea

         On to Lasalle's first claim. He argues that the Sentencing Guidelines' § 2K2.1(b)(4) two-level increase for using a stolen firearm (what Lasalle calls the stolen-firearm enhancement) is invalid because it does not include an element of mens rea, meaning the court applied the offense-level increase even though the government never had to prove Lasalle knew his gun was stolen. (He claimed he found it on the side of the road.) Lasalle says this flaw invalidates the enhancement for three reasons: (1) it violates his due process rights, (2) it is contrary to the congressional intent expressed in the Gun Control Act of 1968, and (3) it is contrary to the purposes of the Sentencing Reform Act of 1984. These are legal arguments that we address de novo. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). We break down and knock down each argument in turn.

         1) Due Process

         We turn first to his lead argument--that without an element of mens rea, the application of the offense-level increase violated his Fifth Amendment due process rights. Lasalle couches this argument in more abstract language: "[T]hat an injury can amount to a crime only when inflicted by intention," he points out, "is [a principle] as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette v. United States, 342 U.S. 246, 250 (1952). But in the end it boils down to this: Due process protects the right to fair notice, meaning notice to an individual that his conduct does not conform to the law. See Staples v. United States, 511 U.S. 600, 615-16 (1994); United States v. Ford, 821 F.3d 63, 70 (1st Cir. 2016). Generally, criminal statutes provide that notice by including an element of mens rea, and so a mens-rea-less statute can violate a defendant's due process rights. Staples, 511 U.S. at 605-06; Ford, 821 F.3d at 70. Lasalle says the same mens-rea reasoning applies to his Guidelines enhancement, so the mens-rea-less enhancement violates his due process rights, too.

         The government does not address Lasalle's due process notice argument on his terms. Instead, it reasons that the offense-level increase is valid by process of elimination: the increase does not violate Lasalle's constitutional rights because it does not alter the minimum or maximum penalty for Lasalle's crime, create a separate offense with a separate penalty, alter the burden of proof, or negate Lasalle's presumption of innocence. See Alleyne v. United States, 133 S.Ct. 2151, 2158 (2013); McMillan v. Pennsylvania, 477 U.S. 79, 87 (1986). So, the offense- level increase neither creates a separate crime, nor functions as an element of a crime. We take the government's argument to mean that because the stolen-gun offense-level increase is "fundamentally distinct" from a crime, it is no different from any other factor a court may constitutionally consider in formulating a defendant's sentence--mens-rea requirement or not. United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (distinguishing Staples, finding mens-rea-less offense-level increase did not violate due process). Besides, says the government, every other circuit that has considered Lasalle's due process notice argument has rejected it, and so it urges us to reject the argument, too.[2]See United States v. Thomas, 628 F.3d 64, 69 (2d Cir. 2010); United States v. Mobley, 956 F.2d 450, 454 (3d Cir. 1992) (defendant's due process argument is "constitutional wishful thinking"); United States v. Singleton, 946 F.2d 23, 26 (5th Cir. 1991); Murphy, 96 F.3d at 849; United States v. Schnell, 982 F.2d 216, 220 (7th Cir. 1992); United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993); see also United States v. Taylor, 659 F.3d 339, 343-44 (4th Cir. 2011) (stolen firearm offense-level increase not "inconsistent with federal law").

         Here's our take. Lasalle argues that the same due process notice principles that apply to criminal statutes should apply to the Sentencing Guidelines' enhancements, but he gives us no reason to believe the two are analogous. The closest thing to guiding authority he cites is Staples, 511 U.S. at 605--a case about a criminal statute--where the Court read an element of mens rea into a statute to avoid a notice-based due process violation like the one Lasalle says he suffered here. The statute at issue in Staples prohibited the ownership of unregistered machineguns, but did not require the government to prove the defendant knew his gun was a machinegun to convict. Congress can omit an element of mens rea when it makes clear that's what it intended to do, the Court reasoned, but the Staples statute was ambiguous on this point.[3] And without an element of mens rea, the statute "would impose criminal sanctions on a class of persons whose mental state--ignorance of the characteristics of weapons in their possession[, that they were machineguns]--makes their actions entirely innocent." Id. at 614–15. So, without a mens-rea element, the defendant would not have notice that his actions would break the law, and importantly, would have no opportunity to conform his conduct to the law.

         The problem for Lasalle is that the Staples rationale does not apply to the Sentencing Guidelines because the Guidelines are advisory. That means that no matter the defendant's Guidelines range, "the sentencing court retains discretion to impose [an] enhanced [or reduced] sentence" within the statutory range set by the defendant's crime of conviction. Beckles v. United States, 137 S.Ct. 886, 894 (2017); see Singleton, 946 F.2d at 26. This Guidelines provision has no effect on that statutory sentencing range; it only guides the "sentencing court's quest to formulate a proper sentence." Murphy, 96 F.3d at 849 (quoting Singleton, 946 F.2d at 26). The statute defining the crime limits the sentencing court's discretion and provides "[a]ll of the notice required" by the due process clause. Beckles, 137 S.Ct. at 894.

         That makes sense--after all, by the time the Guidelines appear on the horizon, the defendant has already been convicted of (or like Lasalle, pled guilty to) a crime that itself includes an element of mens rea. Indeed, "[c]riminal intent is an element of the crime of possession of a gun by a convicted felon, and this element was established by [Lasalle's] guilty plea of knowing possession of the gun." Singleton, 946 F.2d at 26 (emphasis omitted). So unlike a mens-rea-less criminal statute, "the Guidelines 'may compound the punishment for the offense, but [they] fall far short of criminalizing apparently innocent conduct.'" United Statesv.Ray, 704 F.3d 1307, 1312 (10th Cir. 2013) (quoting United Statesv.Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008)); accord Murphy, 96 F.3d at 848-49. This is no novel conclusion: as the government ...

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