United States v. Yamil Gonzalez-Rodriguez , 360 F. App'x 14 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 5, 2010
No. 09-10555
Non-Argument Calendar JOHN LEY
ACTING CLERK
________________________
D. C. Docket No. 08-20437-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YAMIL GONZALEZ-RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 5, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Yamil Gonzalez-Rodriguez, through counsel, appeals his concurrent
33-month sentences for conspiracy to encourage aliens to enter the United States
illegally and for encouraging aliens to enter the United States illegally. On appeal,
Gonzalez-Rodriguez argues that the district court erred by applying a six-level
sentencing enhancement under U.S.S.G. § 2C1.1(b)(5)(C) for possession of a
firearm during the offense of conviction. Specifically, he argues that the upward
adjustment was improper because (1) the government did not present evidence
regarding possession of the firearm at trial or at the sentencing hearing, and (2) he
was not in possession of the firearm when he engaged in the conspiracy, because
the conspiracy ended prior to the seizure of his firearm.
We review a district court’s factual findings for clear error, and the
application of the guidelines to those facts de novo. United States v. Pham,
463 F.3d 1239, 1245 (11th Cir. 2006). A factual finding is clearly erroneous when
we are “left with a definite and firm conviction that a mistake has been
committed” after we review all of the evidence. United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotation omitted).
It is illegal for a person to conspire to encourage or induce an alien to come
to, enter, or reside in the United States, if the person knows or recklessly
disregards the fact that doing so will be in violation of law. 8 U.S.C.
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§ 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I). It also is illegal for a person to bring an alien
who has not received prior authorization to the United States for the purpose of
commercial advantage or private financial gain. Id. § 1324(b)(2)(B)(ii). The
sentencing guidelines provide for a base offense level of 12 for a person convicted
of violating a provision of § 1324. U.S.S.G. § 2L1.1(a)(3). If the defendant
possessed a dangerous weapon in connection with the offense, the guidelines call
for a 2-level increase in offense level, or an increase to offense level 18, whichever
is higher. Id. § 2L1.1(b)(5)(C).
In determining whether to apply a specific offense characteristic, the district
court should consider all acts and omissions committed by the defendant “that
occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility for
that offense.” Id. § 1B1.3(a)(1)(A). When deciding whether to apply a sentencing
enhancement, the district court may consider evidence of unindicted conduct,
conduct for which the defendant has been acquitted, and conduct that goes beyond
an averment of the indictment. United States v. Nyhuis, 8 F.3d 731, 744 (11th Cir.
1993). With regard to computing the statute of limitations, we have held that “a
conspiracy is deemed to continue as long as its purposes have neither been
abandoned nor accomplished, and no affirmative showing has been made that it
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has terminated.” United States v. Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997).
Here, the pre-sentence investigation report contains evidence that
Gonzalez-Rodriguez brought a gun with him when he went to the Holiday Inn
parking lot to collect payment for the smuggling, and that he threatened to shoot
the smuggled alien from whom he was collecting the payment. Moreover, because
the district court was permitted to consider allegations that went beyond the
averments of the indictment, the court did not clearly err in finding that
Gonzalez-Rodriguez’s collection of payment for the smuggling was an objective
of the conspiracy. Therefore, the district court did not clearly err in finding that
the evidence showed that Gonzalez-Rodriguez possessed a gun in connection with
the conspiracy. In light of the district court’s factual findings, the court did not err
in applying the firearm enhancement.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.1
1
Appellant’s request for oral argument is denied.
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