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United States v. Gonzalez-Barbosa

United States Court of Appeals, First Circuit

April 8, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JONATHAN GONZÁLEZ-BARBOSA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge]

          Marie L. Cortés Cortés for appellant.

          Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief for appellee.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          HOWARD, CHIEF JUDGE.

         Appellant Jonathan[1] González-Barbosa appeals his incarcerative sentence of 97 months, claiming that the district court erred in calculating his Criminal History Category under the Sentencing Guidelines, because a prior conviction was "relevant conduct" and therefore not for an offense that was separate from his present conviction. González also challenges his sentence as procedurally unreasonable based on sentence disparities and an inadequate explanation by the judge.

         Discerning no error by the district court, we affirm the sentence.

         I. BACKGROUND

         In 2010, González was indicted along with twenty-seven others for conspiring to possess with intent to distribute controlled substances within 1000 feet of the Columbus Landing Public Housing Project in Mayaguez, Puerto Rico, in violation of 21 U.S.C. §§ 846 and 860. The indictment listed González as a seller in the conspiracy, which lasted between 2002 and 2010. González pled guilty and was sentenced to 60 months of imprisonment followed by 8 years of supervised release.

         While serving his supervised release term, González was arrested again in July 2016. This time, he and thirty-nine others were indicted for violations of § 846 and other crimes between 2010 and 2016. These other crimes included aiding and abetting in the possession with intent to distribute cocaine base, cocaine, and marijuana within 1000 feet of the Columbus Landing Public Housing Project, as well as conspiracy to possess firearms in furtherance of a drug trafficking offense. Again, González pled guilty.

         Under the plea agreement, González was to be held responsible for at least 500 grams but less than 2 kilograms of cocaine. He also admitted to acting as a drug point owner and a runner in the conspiracy. The parties agreed that he would be assigned a base offense level (BOL) of 24, as well as a two-level enhancement for protected location, a two-level enhancement for a leadership role in the offense, and a three-level reduction for acceptance of responsibility for a total offense level (TOL) of 25. As provided in the Sentencing Guidelines, González's guideline sentencing range (GSR) would be determined by taking his TOL and his Criminal History Category (CHC) and plotting them on the guidelines table. The plea agreement made no stipulation as to González's CHC, but made a joint recommendation of 72 months' imprisonment "if Defendant's CHC is I to III."

         The Presentence Investigation Report (PSR) prepared by the United States Probation Office mirrored the plea agreement's guidelines calculation, but added a two-level enhancement for the foreseeable possession of a firearm during the offense, as provided by U.S.S.G. § 2D1.1(b). The PSR therefore assigned González a TOL of 27. With respect to González's CHC, the PSR added three points for his prior conviction relating to the 2002-2010 conspiracy and two points because the instant offense was committed during a term of supervised release. Consequently, the PSR recommended a CHC of III. With a TOL of 27 and CHC of III, the PSR calculated the GSR to be 87 to 108 months.

         González objected to the PSR's firearms enhancement, arguing that the TOL should be 25 as stipulated in the plea agreement. He also asserted that his participation in the conspiracy was limited, because he was incarcerated for most of the duration of the 2010-2016 conspiracy. González made no other objections to the PSR. The U.S. Probation Officer rejected González's objections and left the PSR sentencing calculations unchanged.

         At González's sentencing hearing, the district court first imposed a sentence of 18 months' imprisonment for the violation of supervised release. Turning to the sentence for the 2010-2016 conspiracy, the court noted that it had reviewed the plea agreement, the PSR, González's sentencing memorandum, and his objection to the firearms enhancement. After the court heard arguments about the firearms enhancement and the recommended sentence of 72 months, it accepted the PSR-recommended guideline sentencing range of 87 to 108 months' imprisonment. After discussing the various § 3553(a) factors, the ...


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