United States v. Luis Gonzalez , 463 F. App'x 621 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10310
Plaintiff - Appellee, D.C. No. 3:06-cr-00710-WHA-2
v.
MEMORANDUM *
LUIS ALBERTO GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted November 15, 2011
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, District Judge.**
Luis Alberto Gonzalez (“Gonzalez”) appeals for the second time his 96-month
sentence imposed for conspiracy to commit wire fraud and wire fraud, arising out of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern New York, sitting by designation.
a car insurance scam he participated in with his wife, Katherine Paiz (“Paiz”). In a
prior appeal, this court affirmed his conviction but remanded for resentencing because
the district court had procedurally erred in its calculation of the Sentencing Guidelines
by imposing two insufficiently supported enhancements. On remand, the district court
accepted the lower Guideline range as correct, but nonetheless imposed the identical
96-month sentence, relying on the sentencing factors set forth in 18 U.S.C. § 3553(a).
We affirm.
The district court did not impermissibly punish Gonzalez for exercising his
constitutional right to trial. The court did not express any indication that it was
punishing Gonzalez for putting the government to its proof versus pleading guilty. Cf.
United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982). Rather, the
principal concern voiced by the district court was with Gonzalez’s last-minute
decision to disavow his earlier confession and blame his wife for the crime, in contrast
to Gonzalez’s earlier representation that he would testify for her at her trial and
exculpate her (which had persuaded the court to sever their trials in the first place).
Nor did the district court commit any significant procedural error during the
resentencing. Although the district court misstated that Gonzalez had recanted his
confession after jeopardy attached (as opposed to a week before) and that he had
violated conditions of release one day later (as opposed to five days later), it cannot
2
be said, upon a review of the sentencing transcript, that the court based the sentence
on the specific timing of these events, as opposed to the broader principles the court
was discussing at the time.
The district court discussed the Guidelines calculation with the parties at the
outset and clearly accepted the probation office’s calculation as correct. It then spent
considerable time outlining Gonzalez’s history of “lack of respect for the law,” before
concluding that an above-Guidelines sentence was needed for a variety of § 3553
factors. The record as a whole does not suggest a passing or cursory statement about
the Guideline range, but indicates the district court considered the range but found it
to be inadequate to serve the sentencing goals. See United States v. Autery, 555 F.3d
864, 873 (9th Cir. 2009).
The district court did not err by considering Gonzalez’s post-sentencing
conduct. See Pepper v. United States, 131 S. Ct. 1229 (2011). The district court also
sufficiently addressed and rejected Gonzalez’s argument that his criminal history was
overstated.1
1
Although Gonzalez casts this as a procedural error, we have held that
“variances” from a correctly calculated Guideline range are to be considered as part
of the substantive reasonableness of the sentence, which is discussed below. United
States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011).
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Finally, even assuming the court may have violated Federal Rule of Criminal
Procedure 32 by failing to inform Gonzalez of ex parte information it received from
his wife’s counsel that she did not plan to call Gonzalez because she did not think
Gonzalez could credibly exonerate his wife after his defense at his own trial, any error
was harmless as this information was largely cumulative of the public credibility
problems Gonzalez had, which were expressly noted by the district court (i.e., the
differences between his confession to the FBI and his defense at trial). See United
States v. Warr, 530 F.3d 1152, 1163 (9th Cir. 2008).
As there were no procedural errors with the sentence, we proceed to review for
substantive reasonableness; we review the district court’s decision for an abuse of
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Although the district court was primarily focused on the need to “promote respect for
the law,” the record indicates that the court did consider the additional factors set forth
in § 3553(a) and also based the sentence on the need to protect the public, provide
deterrence, and adequately reflect the seriousness of the crime. Although some of the
factors identified to support the above-Guidelines sentence were encompassed by the
criminal history calculation, the court also identified some factors which were not.
4
See United States v. Lichtenberg, 631 F.3d 1021, 1027 (9th Cir. 2011). The sentence
was not substantively unreasonable.
AFFIRMED.
5