United States v. Gonzalez-Gomez , 85 F. App'x 94 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4232
(D. Utah)
ANGEL GONZALEZ-GOMEZ, also (D. Ct. No. 2:02-CR-388-TS)
known as Angel Munoz Gomez, also
known as Angel Gomez-Gonzales,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Angel Gonzalez-Gomez challenges the district court’s denial of a
downward adjustment for acceptance of responsibility pursuant to USSG §
3E1.1(a). 1 Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), we affirm.
Gonzalez-Gomez was charged with one count of illegal reentry of a
deported alien in violation of 8 U.S.C. § 1326. On August 16, 2002, the same day
of Gonzalez-Gomez’s trial, he very reluctantly pled guilty. Prior to sentencing,
Gonzalez-Gomez informed the assigned probation officer of his intent to return to
the United States despite agreeing not to. 2 The district court subsequently
determined that Gonzalez-Gomez was not entitled to a reduction of his sentence
for acceptance of responsibility because his plea was untimely, reluctantly given,
and because he did not fully accept responsibility for his conduct by declaring his
intent to return to the country without permission.
We review the district court’s determination of whether a defendant has
1
United States Sentencing Commission, Guidelines Manual, § 3E1.1(a)
(Nov. 2002).
2
In his plea agreement, Gonzalez-Gomez agreed “to remain outside the
United States unless given the express permission to legally reenter the United
States by the United States Attorney General.” (R. Vol. I, Doc. 24 at 4.) The
Presentence Report indicates: “During the presentence interview, the defendant
was asked what he planned to do after he is released from custody and is deported
to Mexico. He stated he continues to return to the United States because he likes
it here, and plans to return again.” (R. Vol. IV at 4, ¶ 11.) These facts fairly
demonstrate an intent on the part of Gonzalez-Gomez to return to the United
States without permission from the Attorney General.
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accepted responsibility for clear error. United States v. Saffo, 227 F.3d 1260,
1271 (10th Cir. 2000), cert. denied, 532 U.S. 974 (2001). Because “[t]he
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility . . . the determination of the sentencing judge is entitled to great
deference on review. USSG § 3E1.1, comment. (n.5).
Gonzalez-Gomez contends he should have received a downward adjustment
because he (1) pled guilty before trial, (2) freely admitted his guilt, and (3) meant
to state he would only return to the United States legally. The government
counters that Gonzalez-Gomez did not convincingly demonstrate acceptance of
responsibility because he (1) reluctantly pled guilty, (2) pled guilty on the day
trial was to begin, which forced the government to expend considerable resources
in preparing for trial, and (3) declared his intent to continue the kind of criminal
conduct for which he was charged.
Having carefully reviewed the record, we cannot conclude the district court
clearly erred in refusing to grant the departure. The Guidelines allow the district
court to consider forthright admission of guilt, the timeliness of a defendant’s
guilty plea, as well as his intent to terminate his criminal conduct in determining
whether he manifests an acceptance of responsibility. USSG § 3E1.1, comment.
(n.1(a), (b), (h)), (n.3). Clearly, Gonzalez-Gomez’s reluctant plea on the day of
trial, coupled with his declared intent to continue to violate the law as he had
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done previously, undermines his argument that he accepts responsibility for his
criminal conduct.
For the foregoing reasons, we AFFIRM Gonzalez-Gomez’s sentence.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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