United States v. Gonzalez , 312 F. App'x 618 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2009
No. 08-30311
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALPIDIO GONZALEZ
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-63-1
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Alpidio Gonzalez was convicted by a jury of possession with intent to
distribute 100 kilograms or more of marijuana and was sentenced to 360 months
of imprisonment and eight years of supervised release. Gonzalez argues that the
Government failed to produce allegedly material impeachment evidence
concerning the cooperating informant Omar Sikaffy in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Gonzalez contends that the Government failed
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-30311
to provide accurate and complete informant personnel files and DEA payment
records to Sikaffy and that it failed to reveal that Sikaffy was responsible to pay
his own income taxes on any payments received.
The record shows that the Government provided Gonzalez with records
showing payments received by Sikaffy for his cooperation. Sikaffy testified
about the payments he received in New Orleans and Houston for his cooperation.
Counsel for Gonzalez had the opportunity to cross-examine Sikaffy about the
payments he received. Counsel cross-examined Sikaffy about the sentencing
benefits he received and his motivations for participating in the undercover
operation and offering testimony at trial. Sikaffy’s criminal record was disclosed
in detail to the jury. In closing argument, counsel for Gonzalez argued that
Sikaffy was totally unreliable based on the benefits paid, the reductions of
sentence received, and his criminal record. Gonzalez has not demonstrated that
the Government failed to disclose any evidence that could have been used to
impeach Sikaffy.
Gonzalez argues that his prior Texas conviction for delivery of a controlled
substance was not a controlled substance offense for sentencing enhancement
purposes. He argues that according to this court’s decisions in United States v.
Gonzalez, 484 F.3d 712 (5th Cir. 2007), United States v. Morales-Martinez, 496
F.3d 356 (5th Cir. 2007), and United States v. Price, 516 F.3d 285 (5th Cir. 2008),
the district court erred in applying the career offender enhancement of U.S.S.G.
§ 4B1.1 because his indictment included a charge of violating the statute by
means of an “offer to sell.” Gonzalez argues that the district court erred in
applying the enhancement based upon his indictment and that the state trial
court made no explicit factual finding regarding whether the offense was
accomplished by “actual transfer” or “offer to sell.”
The district court had before it the state court judgment, which stated in
writing that the offense had been accomplished by actual transfer. The cases
cited by Gonzalez are distinguishable because they lacked such documentation.
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No. 08-30311
The district court did not err in applying the career offender enhancement. See
Morales-Martinez, 496 F.3d at 357.
AFFIRMED.
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