United States v. Hector Gongora ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10276
Plaintiff-Appellee, D.C. Nos.
1:21-cr-00044-DAD-BAM-1
v. 1:21-cr-00044-DAD-BAM
HECTOR KIONI GONGORA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted May 10, 2022
San Francisco, California
Before: O’SCANNLAIN and BUMATAY, Circuit Judges, and BAKER,**
International Trade Judge.
Hector Gongora appeals his sentences for possession with intent to distribute
methamphetamine, being a felon in possession of a firearm, and being a felon in
possession of ammunition. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). He first
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
argues that his change-of-plea and sentencing hearings were improperly held over
video and teleconference. He also claims that the district court improperly applied
the firearm sentencing enhancement under U.S. Sentencing Guidelines
§ 2D1.1(b)(1). Because Gongora did not previously object to either ruling of the
district court, we review for plain error. See United States v. Grimaldo, 993 F.3d
1077, 1081 (9th Cir. 2021). To prevail, Gongora must establish that (1) a clear or
obvious (2) error (3) affected his substantial rights and (4) seriously affected the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Johnson, 979 F.3d 632, 636 (9th Cir. 2020). We have jurisdiction to review under
28 U.S.C. § 1291 and affirm.
1. Gongora objects to the use of video and teleconference for his change-of-
plea and sentencing proceedings because the district court failed to make the
requisite showings under the Coronavirus Aid, Relief, and Economic Securities Act
(“CARES Act”), § 15002(b)(2)(A), (b)(4). To show prejudice, Gongora must either
show a “reasonable probability” that he would not have entered a guilty plea but for
the error, United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015), or that the
error affected the outcome of his sentencing, United States v. Ameline, 409 F.3d
1073, 1078 (9th Cir. 2005).
Gongora has not shown any prejudice from the use of video and
teleconference during his change-of-plea hearing. At the hearing, Gongora was
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asked if he wished to waive his right to appear in person and affirmed that he did.
Gongora’s counsel also advised that he was prepared to proceed by video and
teleconference. As the district court noted, the goal of proceeding by teleconference
was to further the interests of 18 U.S.C. § 3553, which includes providing
rehabilitation programs as soon as possible. On appeal, Gongora has not argued that
he would not have proceeded with his guilty plea if he waited to appear in person or
if the district court made more detailed findings for the need of the teleconference.
See United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004) (“The point . . . is
to enquire whether the [error] . . . would have made the difference required by the
standard of reasonable probability . . . .”).
Similarly, Gongora has not shown prejudice from the use of
videoconferencing at his sentencing. Once again, Gongora was asked if he wished
to waive his right to appear in person for sentencing and he agreed he did. Gongora’s
counsel also reiterated that he consented to proceed by videoconferencing.
Furthermore, proceeding by videoconference permitted him to be sentenced and
receive programming through the Bureau of Prisons more quickly. On appeal, he
does not claim that appearing in person, rather than by video, would have changed
the results of his sentencing.
Instead of showing prejudice, Gongora asserts that the use of video and
teleconferencing was per se prejudicial. We disagree. As we have said previously,
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the violation of Federal Rule of Criminal Procedure 43—which governs the
defendant’s presence at court proceedings—is subject to harmless error review. See
United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109–10 (9th Cir. 2002) (finding
that the Rule 43 “error was harmless . . . and that there is no reasonable possibility
that prejudice resulted from the [defendant’s] absence” (simplified)). Since Gongora
has not shown any prejudice, there was no plain error.
2. Gongora also contends that § 2D1.1(b)(1)’s enhancement for possession of
a firearm did not apply because evidence shows that he always carried a gun for
general protection. We have said that “the enhancement should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” United States v. Gomez, 6 F.4th 992, 1008 (9th Cir. 2021)
(simplified). We interpret the requirement of a “connection” with the offense
“broadly” and it applies to the defendant’s “entire course of criminal conduct,” not
the just the crime of conviction. Id. at 1009 (simplified). Here, officers found a
firearm where Gongora was standing just before his arrest and, in Gongora’s
backpack in a nearby car, they found three bags of methamphetamine, a loaded
magazine, loose ammunition, and a holster. Even if Gongora also uses the firearm
for general protection, that does not preclude it from being connected to the offense.
There is thus no plain error.
AFFIRMED.
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