United States v. Jose A. Gonzalez , 158 F. App'x 763 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3795
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jose Antonio Gonzalez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 22, 2005
Filed: January 6, 2006
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Before MELLOY, HANSEN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jose Antonio Gonzalez appeals the sentence the district court imposed after he
pleaded guilty to conspiring to forge endorsements and signatures on United States
Treasury checks with the intent to defraud, in violation of 18 U.S.C. §§ 371 and 510.
Gonzalez objected to a U.S.S.G. § 3B1.1(b) role enhancement, arguing that he was
not a manager or supervisor, and that the enhancement was barred by Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
The district court overruled the objection; calculated a Guidelines imprisonment
range of 33-41 months (which reflected the role enhancement, as well as other
enhancements based on stipulated facts); and imposed a sentence of 33 months in
prison and 3 years supervised release. On appeal, Gonzalez renews his arguments
against the role enhancement.
The Blakely challenge to the sentence is valid, because the district court erred
in sentencing Gonzalez based on judge-found facts, in violation of the Sixth
Amendment, under a mandatory Guidelines scheme, see United States v. Booker, 125
S. Ct. 738, 756-57 (2005) (holding Guidelines to be only advisory), and Gonzalez
preserved this issue at sentencing, see United States v. Pirani, 406 F.3d 543, 549 (8th
Cir.) (en banc) (Booker error preserved by, inter alia, raising Blakely), cert. denied,
126 S. Ct. 266 (2005). We conclude the government did not meet its burden of
proving that the error was harmless. See United States v. Mendoza-Mesa, 421 F.3d
671, 673 (8th Cir. 2005) (without more, a bottom-of-the-range sentence does not
show harmless error when there is a preserved Sixth Amendment violation). Thus,
we must remand for the district court to fashion a post-Booker sentence, utilizing
advisory Guidelines. See Booker, 125 S. Ct. at 765-66.
As to Gonzalez’s other argument, which will be relevant on remand, we
conclude the district court did not err in finding that Gonzalez acted as a manager or
supervisor in a conspiracy involving five or more participants. See United States v.
Burling, 420 F.3d 745, 749 (8th Cir. 2005) (standard of review). Evidence showed
that Gonzalez recruited a coconspirator, drove her and two other coconspirators from
Texas to Nebraska and then to various check-cashing establishments, and was the
communication link to the leader of the conspiracy. Cf. United States v. Shallal, 410
F.3d 434, 437 (8th Cir. 2005) (finding no error in imposition of § 3B1.1(b)
enhancement where defendant, in addition to taking a larger share of proceeds,
recruited coconspirator, gave him directions, monitored his progress, and introduced
him to other conspirators); United States v. Tran, 122 F.3d 670, 674 (8th Cir. 1997)
(enhancement under § 3B1.1(b) to reflect defendant’s role as manager or supervisor
in conspiracy to traffic in counterfeit checks was warranted, given evidence that
defendant recruited driver and persons to pass checks at banks, and that, while
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defendant did not appear to cash checks, he was always around house from which
conspiracy was operated).
Accordingly, we remand for resentencing.
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