United States v. Gonzales , 29 F. App'x 165 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4137
RUTILO RIOS GONZALES, a/k/a
Compachi,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4138
MIGUEL AVILES MONDRAGON, a/k/a
Manuel Arrellano Munoz,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-99-27)
Submitted: January 31, 2002
Decided: February 20, 2002
Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. GONZALES
COUNSEL
Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina; Gregory J. Ramage, Raleigh, North Carolina, for
Appellants. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rutilo Rios Gonzales pled guilty to possession with intent to dis-
tribute at least 500 grams of cocaine and 100 kilograms of marijuana,
21 U.S.C.A. § 841 (West 1999) (Count One), and conspiring between
1996 and 1998 to distribute and possess with intent to distribute at
least five kilograms of cocaine and 1000 kilograms of marijuana, 21
U.S.C.A. § 846 (West 1999) (Count Two). He was sentenced to a
term of 360 months imprisonment. Miguel Aviles Mondragon pled
guilty to Count Two and received a sentence of 160 months imprison-
ment. Both Gonzales and Mondragon appeal their sentences. We
affirm.
Gonzales distributed cocaine and marijuana in North Carolina,
receiving regular shipments from two brothers in Texas. Mondragon
began assisting him in September 1997. Gonzales was arrested in
February 1998 and indicted on the instant federal charges a year later.
Five pounds of marijuana and several firearms were seized from the
mobile home he shared with Mondragon. At a second mobile home
used by Gonzales, investigators discovered almost a kilogram of
cocaine and $28,000 in cash. Mondragon was arrested in June 1999,
on his way to meet an informant, with eleven pounds of marijuana in
his truck. At the time, he was on probation for an unrelated offense.
UNITED STATES v. GONZALES 3
Based on information in the presentence report and testimony from
a Drug Enforcement Administration agent at the sentencing hearing,
the district court found that Gonzales was responsible for at least fifty
kilograms of cocaine or 10,000 kilograms of marijuana, and that his
base offense level was properly set at 36. U.S. Sentencing Guidelines
Manual § 2D1.1 (1998). With a two-level enhancement for posses-
sion of weapons during the offense, a three-level adjustment for being
a manager or supervisor in the offense, and a three-level reduction for
acceptance of responsibility, Gonzales’ final offense level was 38. He
was in criminal history III, giving him a guideline range of 292-365
months.
Gonzales first contends that the district court violated his Fifth
Amendment right to remain silent by sentencing him near the top of
the guideline range because he refused to cooperate with authorities.
Gonzales did not object to the sentence on these grounds in the dis-
trict court. Therefore, the issue he raises is reviewed under the plain
error standard. United States v. Olano, 507 U.S. 725, 731-32 (1993)
(appeals court will not notice unpreserved error unless error occurred,
that was plain, affected substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings). Gon-
zales relies on Mitchell v. United States, 526 U.S. 314, 327-30 (1999),
in which the Supreme Court held that a guilty plea does not waive the
right against self-incrimination and that a sentencing court may not
draw any adverse inferences from a defendant’s silence at sentencing
in determining facts relating to the circumstances of the crime. How-
ever, Mitchell is inapposite here because the district court made no
factual determinations based on Gonzales’ failure to cooperate. Gon-
zales also relies on United States v. Rivera, 201 F.3d 99, 101-02 (2d
Cir. 1999), cert. denied, 531 U.S. 901 (2000). In Rivera, the district
court imposed sentence within the guideline range but specifically
stated that sixty months were attributed to the defendant’s failure to
cooperate. The Second Circuit held that the increase was an unconsti-
tutional penalty, thus placing itself in disagreement with the Seventh
Circuit, which has held that the district court is free to consider the
defendant’s failure to cooperate when assigning a sentence within the
guideline range. United States v. Price, 988 F.2d 712, 722 (7th Cir.
1993); United States v. Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991).
While we have not addressed the issue of whether the defendant’s
Fifth Amendment right limits the district court’s discretion in deter-
4 UNITED STATES v. GONZALES
mining the sentence within the guideline range, it is evident that Gon-
zales has not shown that plain error occurred.
Gonzales also contends that USSG § 5K1.2 (Refusal to Assist) pro-
hibited the district court from considering his failure to cooperate.
Section 5K1.2 prohibits departures based on a failure to cooperate,
and thus has no application here. See Burgos, 2001 WL 1643533 at
*6 n.7; Klotz, 943 F.2d at 710.
Next, Gonzales contests the district court’s determination of the
quantity of drugs attributable to him, alleging that resentencing is
required because the district court failed to explain what information
it considered to find that the government had proved the drug amount
necessary for base offense level 36. He concedes that the information
provided to the government by Espirino Pacheco-Meza, if accepted,
would establish those amounts. In the district court, Gonzales argued
that Meza’s statement was not reliable because the amounts he
reported were too high. The government responded that Meza’s infor-
mation was reliable because it was consistent with amounts reported
by a confidential informant1 even though Meza had no known connec-
tion to anyone involved in the conspiracy. The district court accepted
this view. We conclude that the district court’s finding was suffi-
ciently specific when considered in context, and that its determination
of the drug amount based on Meza’s statement was not clearly errone-
ous. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (stat-
ing standard).
Gonzales argues, as he did in the district court, that the district
court clearly erred in determining that he was a manager because the
offense did not involve five or more participants. A three-level adjust-
ment applies if "the defendant was a manager or supervisor (but not
a leader or organizer) and the criminal activity involved five or more
participants, or was otherwise extensive." USSG § 3B1.1(b). Gon-
zales incorrectly asserts that only those participants over whom the
defendant exercised control are counted. His position is directly con-
1
The district court did not consider the informant’s information con-
cerning drug quantity, apparently because Gonzales objected that he
could not challenge the reliability of the informant, whose identity was
not disclosed.
UNITED STATES v. GONZALES 5
tradicted by the commentary to § 3B1.1, in which a "participant" is
defined as "a person who is criminally responsible for the commission
of the offense, but need not have been convicted." USSG § 3B1.1,
comment. (n.1). See also United States v. Bartley, 230 F.3d 667, 674
(4th Cir. 2000). Moreover, there was information before the court that
established that, aside from the confidential informants, the offense
involved at least five participants.
Mondragon disputes two criminal history points he received under
USSG § 4A1.1(d) for having committed a part of the instant offense
while on probation for an unrelated offense. After Gonzales’ arrest in
February 1998, Mondragon sold 1.5 kilograms of cocaine to one of
the confidential informants.2 Mondragon was placed on probation in
February 1999 and was arrested in June 1999 with 4.9 kilograms of
marijuana in his truck. This amount of marijuana was treated as rele-
vant conduct in determining his base offense level. The commentary
to § 4A1.1 provides that two points are added under subsection (d) "if
the defendant committed any part of the instant offense (i.e., any rele-
vant conduct) while under any criminal justice sentence, including . . .
probation . . . ." Although the conspiracy count to which Mondragon
pled guilty charged a conspiracy from 1996 to February 1998, the dis-
trict court found that Mondragon had continued the same criminal
conduct after Gonzales’ arrest and that the two criminal history points
were properly assessed.
On appeal, Mondragon argues that the district court erred in find-
ing that he committed any relevant conduct that was part of the instant
offense while he was on probation. His argument fails because, in
drug offenses, relevant conduct may include acts that are part of the
same course of conduct as the offense of conviction. USSG
§ 1B1.3(a)(2). There was evidence before the district court that Mon-
dragon continued selling marijuana to at least one of Gonzales’ cus-
tomers, the same conduct that had been carried on during the
conspiracy. The district court did not err in adding the two criminal
history points.
2
Mondragon did not object to the use of information from the confi-
dential informants whose identity was not disclosed.
6 UNITED STATES v. GONZALES
Mondragon contends that he should not have received an enhance-
ment under USSG § 2D1.1(b)(1) for possession of weapons because
the guns found in the mobile home belonged to Gonzales. However,
the enhancement applies if a weapon is present, regardless of who
owns it, unless it is clearly improbable that the weapon was connected
with the offense. Mondragon has not attempted to show that the
weapons were unconnected with the offense. Consequently, the dis-
trict court did not clearly err in making the enhancement.
We therefore affirm the sentences. We grant Mondragon’s motion
to adopt the brief and joint appendix filed by prior counsel. We deny
Mondragon’s pro se motion to remand the case and expand the
record. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED