United States v. Goncalves , 613 F.3d 601 ( 2010 )

REVISED AUGUST 25, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 09-10713 August 3, 2010
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JEREMY ALEXANDER GONCALVES,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:
Defendant Jeremy Alexander Goncalves appeals his sentence of thirty-
three months’ incarceration for his convictions of passing counterfeit notes and
for using a falsely altered military discharge certificate. Goncalves argues that
the district court miscalculated his sentence under the United States Sentencing
Commission Guidelines Manual (the “Guidelines” or “U.S.S.G.”). For the
following reasons, we AFFIRM the district court’s sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
No. 09-10713
In August 2007, Goncalves received a bad-conduct discharge from the
United States Army. After his discharge, Goncalves returned to his hometown
of Ludlow, Massachusetts, where he applied for work with Bell Helicopter. Bell
is located in Hurst, Texas. As part of his application, Goncalves emailed Bell an
altered copy of his certificate of discharge from the Army. In the certificate of
discharge, Goncalves indicated that he received an honorable discharge from the
Army, served in special forces for over two years, and last held the rank of
captain. All of these assertions were false. Goncalves also fraudulently
represented to Bell in accompanying documents that he had graduated from the
University of Massachusetts and was currently employed with Northeast
Utilities.
Based on Goncalves’s representations, Bell hired Goncalves, paying for
him and his family to move to Texas. Goncalves began work for Bell in May
2008. However, as part of its own hiring investigation, Bell subsequently
learned that Goncalves had fraudulently altered his certificate of discharge from
the Army and lied about his educational and work background. Bell terminated
Goncalves in June 2008.
In August 2008, Goncalves attempted to purchase a dirt bike through the
Internet from Wilfredo Mendieta for $2,100. When Goncalves and Mendieta met
for the purchase, Goncalves handed Mendieta what appeared to be twenty-one
$100 bills. However, Mendieta later told authorities that he thought that the
bills “felt funny,” so he had them inspected with a counterfeit detection pen.
Some of the bills were revealed to be counterfeit. Mendieta turned the bills over
to police, where the bills were conclusively identified as counterfeit federal
reserve notes, many bearing the same serial number.
Texas state police officers subsequently identified Goncalves as the
purchaser of the dirt bike and arrested him. After his arrest, Goncalves
admitted to the officers that he had used counterfeit notes to purchase the dirt
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No. 09-10713
bike from Mendieta. Goncalves further stated that he had entered into an
arrangement with a Nigerian man in France whom Goncalves had met on the
Internet. According to Goncalves, the Nigerian man had agreed to send
Goncalves counterfeit notes that he would first use to make purchases of items,
and that he would then sell at a profit. The scheme then involved Goncalves
sending the Nigerian man thirty percent of any profits earned from the scheme.
Goncalves later stated to federal officials that he had received a package in the
mail containing the fraudulent notes that he used to purchase the dirt bike.
Federal officials performed a note history on the counterfeit bills used in
Goncalves’s fraudulent purchase of the dirt bike. The note history revealed that
someone had used an additional twenty $100 counterfeit bills with the same
serial numbers to purchase a home-theater system from Circuit City. A
subsequent investigation revealed that Goncalves had used the additional
fraudulent bills to purchase the home-theater system.
Goncalves pleaded guilty in federal court to one count of Uttering
Counterfeit Obligations of the United States, in violation of 18 U.S.C. § 472, and
one count of Using Falsely Altered Military Discharge Certificate, in violation
of 18 U.S.C. §§ 498 & 2. Prior to sentencing, a United States Probation Officer
submitted a Presentence Report (PSR), which calculated that Goncalves’s
Guidelines range of imprisonment was twenty-seven to thirty-three months.
Goncalves objected to the recommended Guidelines sentence calculation
in the PSR. First, Goncalves argued that his offenses should have been grouped
pursuant to U.S.S.G. § 3D1.2(d), which allows for grouping of offenses that
“involve substantially the same harm.” Such a grouping would have resulted in
a two-level reduction in his Guidelines sentence. Goncalves also argued that the
PSR improperly applied § 2B5.1(b)(5), which applies a two-level enhancement
if any conduct relevant to the offense occurred outside the United States. The
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No. 09-10713
district court overruled both objections and sentenced Goncalves to thirty-three
months’ incarceration, which was at the top of the calculated Guidelines range.
Goncalves now appeals his sentence and reiterates the objections he made
at sentencing.
II. STANDARD OF REVIEW
We review a district court’s sentencing decision for abuse of discretion. See
United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010). For properly
preserved claims, we review the court’s application and interpretation of the
Guidelines de novo. See United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir.
2010). A district court’s factual findings, which we review for clear error, must
be supported by a preponderance of the evidence. See id. “‘A factual finding is
not clearly erroneous as long as it is plausible in light of the record read as a
whole.’” United States v. McMillan, 600 F.3d 434, 457–58 (5th Cir. 2010)
(quoting United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996)).
III. DISCUSSION
A. No Error for Not Grouping the Offenses under § 3D1.2(d)
Goncalves first argues that the district court erred by failing to group his
two convictions under U.S.S.G. § 3D1.2. Specifically, Goncalves argues that
because § 3D1.2(d) lists both of the crimes for which he was convicted in a list
of offenses “to be grouped,” the court erred in finding that the Guideline did not
apply.
Section 3D1.2 states that “[a]ll counts involving substantially the same
harm shall be grouped together into a single Group.” The section then sets forth
four different categories of offenses that “involve substantially the same harm
within the meaning of this rule.” The only such category at issue here is that
contained in subsection (d), which applies in the following circumstance:
When the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or
some other measure of aggregate harm, or if the offense behavior is
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No. 09-10713
ongoing or continuous in nature and the offense guideline is written
to cover such behavior.
Id.1 Subsection (d) further sets forth three categories of Guidelines that cover
certain offenses and how those offenses are treated under § 3D1.2(d). The first
category lists Guidelines covering offenses that “are to be grouped” under the
subsection. Id. The second category lists Guidelines covering offenses that are
specifically excluded from grouping under the subsection. Finally, the third
category states that multiple counts of unlisted offenses must be determined on
a case-by-case basis. Id.; see also United States v. Salter, 241 F.3d 392, 394 (5th
Cir. 2001).
The Guidelines covering Goncalves’s two offenses are found on the same
line of the first category of § 3D1.2(d). Because § 3D1.2(d) states that offenses
in this list “are to be grouped” under the subsection, Goncalves argues that a per
se rule exists regarding their grouping. However, we have held that “grouping
is not mandatory or automatic simply because a defendant is charged with an
1
In relevant part, the Guideline provides as follows:
All counts involving substantially the same harm shall be grouped together into
a single Group. Counts involve substantially the same harm within the
meaning of this rule:
(a) When counts involve the same victim and the same act or
transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or constituting
part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline applicable
to another of the counts.
(d) When the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm, or if the offense behavior is ongoing
or continuous in nature and the offense guideline is written to cover such
behavior.
U.S.S.G. § 3D1.2.
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No. 09-10713
offense that falls under a guideline listed in § 3D1.2(d).” United States v.
Lopez–Urbina, 434 F.3d 750, 763 (5th Cir. 2005) (citing United States v. Solis,
299 F.3d 420, 459–60 (5th Cir. 2002)). Rather, an offense covered by a Guideline
in the first category is only “susceptible to grouping under that subsection.” Id.No per se rule exists.2
When deciding what criteria to consider when determining whether
grouping is appropriate under the first category of offenses in § 3D1.2(d), we look
to the Guideline’s Commentary. See United States v. Patterson, 962 F.2d 409,
416 (5th Cir. 1992). Application Note 6 of the Commentary states that “[c]ounts
involving offenses to which different offense guidelines apply are grouped
together under subsection (d) if the offenses are of the same general type and
otherwise meet the criteria for grouping under this subsection.” U.S.S.G.
§ 3D1.2 cmt. n.6. The Application Note further states that “[t]he ‘same general
type’ of offense is to be construed broadly.” Id.
Goncalves argues that his offenses are of the “same general type” because
they are both acts of fraud and involve economic loss. However, these
similarities alone are insufficient. See, e.g., United States v. Brisson, 448 F.3d
989, 992 (7th Cir. 2006) (convictions for bank fraud and fraud against the United
States were not “of the same general type” simply because they were “economic
offenses arising out of the failed ownership of the hotel”). Furthermore, such
similarities are all that exist between the two offenses. One of the offenses for
which Goncalves was convicted took place in August 2008 and involved the
purchase of private property with counterfeit bills. The other offense took place
2
Goncalves switches course in his reply brief and argues that his position is not for a
per se rule under § 3D1.2(d), but that the district court erred by not considering § 3D1.2 at all.
However, this new position is belied by the language in his original appellate brief arguing that
§ 3D1.2(d) sets forth a per se rule. It is also belied by the paragraph of the PSR to which
Goncalves specifically objected before the district court, which discusses § 3D1.2 in detail and
concludes that grouping is inappropriate.
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No. 09-10713
in May 2007 and involved the alteration of a military certificate of discharge in
order to deceive a company into hiring him. The crimes involve different
schemes, different objectives, and different victims, and they took place at
different times. They are thus not of “the same general type.” See United States
v. Ballard, 919 F.2d 255, 257 (5th Cir. 1990) (finding no error when the district
court did not group two crimes falling under the same enumerated Guideline in
§ 3D1.2(d) when the crime involved two separate victims, two separate vehicles,
and two separate events); Brisson, 448 F.3d at 992 (offenses not of the same
general type under § 3D1.2(d) when they involved, inter alia, different victims).
Finally, even if the two offenses were “of the same general type,” a review
of Goncalves’s PSR demonstrates that the offense level for either crime was not
“determined largely on the basis of the total amount of harm or loss.” U.S.S.G.
§ 3D1.2(d). The PSR recommended only a one-level increase for the amount in
question for Goncalves’s counterfeiting conviction, and the amount of harm or
loss was not at issue for his material alteration offense except to calculate
restitution. In addition, Goncalves has not shown that his offense level has been
calculated pursuant to Guidelines written to cover “behavior [that] is ongoing or
continuous in nature.” Id. Goncalves’s alteration of a military document was a
discrete event, as was the purchase of a home-theater system with the use of
counterfeit bills. Thus, the offenses do not “otherwise meet the criteria for
grouping under” § 3D1.2(d).
Accordingly, we find no error in the district court’s decision not to group
the offenses for sentencing purposes.
B. No Error in Applying § 2B5.1(b)(5)
Goncalves next argues that the district court erred by applying the
sentence enhancement in U.S.S.G. § 2B5.1(b)(5) to his conviction for passing
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No. 09-10713
counterfeit notes, in violation of 18 U.S.C. § 472.3 This subsection of the
Guidelines allows for a two-level increase in a sentence “[i]f any part of the
offense was committed outside the United States.” U.S.S.G. § 2B5.1(b)(5).
Goncalves argues that the district court erred in two ways when applying
§ 2B5.1(b)(5). First, he contends that the district court erred as a matter of law
by applying § 2B5.1(b)(5) to his conviction under 18 U.S.C. § 472 because the
Guideline applies only to convictions under 18 U.S.C. § 470. Alternatively, he
argues that there is insufficient evidence from which to find that part of the
relevant conduct took place outside the United States. We find no merit in
either contention.
1. No Legal Error
Goncalves first argues that the district court erred as a matter of law by
applying § 2B5.1(b)(5) to his conviction under 18 U.S.C. § 472. This is because,
Goncalves asserts, the enhancement applies only to international counterfeiting
offenses under 18 U.S.C. § 470.4 Specifically, Goncalves points to the
3
That statute provides:
Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts
to pass, utter, publish, or sell, or with like intent brings into the United States
or keeps in possession or conceals any falsely made, forged, counterfeited, or
altered obligation or other security of the United States, shall be fined under
this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 472.
4
This statute provides:
A person who, outside the United States, engages in the act of--
(1) making, dealing, or possessing any counterfeit obligation or other
security of the United States; or
(2) making, dealing, or possessing any plate, stone, analog, digital, or
electronic image, or other thing, or any part thereof, used to counterfeit
such obligation or security,
if such act would constitute a violation of section 471, 473, or 474 if committed
within the United States, shall be punished as is provided for the like offense
within the United States.
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No. 09-10713
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, § 807(h), 110 Stat. 1214, 1310, which states that “the Commission shall
amend the sentencing guidelines prescribed by the Commission to provide an
appropriate enhancement of the punishment for a defendant convicted under
section 470 of title 18 of such Code.” Because AEDPA § 807(h) refers only to 18
U.S.C. § 470 and not to 18 U.S.C. § 472, Goncalves argues that any application
of § 2B5.1(b)(5) goes beyond Congress’s intent.
Under 28 U.S.C. § 994(a), the Sentencing Commission is vested with the
authority to promulgate Guidelines that are “consistent with all pertinent
provisions of any Federal statute.” Accordingly, “Congress has delegated to the
Commission ‘significant discretion in formulating guidelines’ for sentencing
convicted federal offenders.” United States v. LaBonte, 520 U.S. 751, 757 (1997)
(quoting Mistretta v. United States, 488 U.S. 361, 377 (1989)). Based on this
discretion and authority, “the Sentencing Commission has the power and the
duty not only to interpret specific provisions of federal statutes regulating
criminal punishment . . . but also to establish . . . standards designed to promote
uniform and rational federal sentencing.” United States v. Lauer, 148 F.3d 766,
769 (7th Cir. 1998) (citing, e.g., Mistretta, 488 U.S. at 367–70). Accordingly, we
have held that the Commission may enact Guidelines that are not inconsistent
with federal law but which are broader than a congressional directive when the
Commission evinces a clear intent to do so. See United States v. Dale, 374 F.3d
321, 330 (5th Cir. 2004), rev’d on other grounds, 543 U.S. 1113 (2005). Goncalves
has failed to show how applying § 2B5.1(b)(5) to 18 U.S.C. § 472 would be
inconsistent with federal law or an abuse of the Commission’s discretion. Thus
we do not find the Commission exceeded its authority in doing so.
18 U.S.C. § 470.
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No. 09-10713
Nevertheless, Goncalves further argues that our holding in Dale otherwise
forecloses the application of § 2B5.1(b)(5) to 18 U.S.C. § 472. In Dale, we held
that the Sentencing Commission had not exceeded its authority by including
non-federally insured entities in a Guideline when the statute authorizing the
Guideline’s promulgation mentioned only federally insured financial institutions.
See Dale, 374 F.3d at 330. In addition, because the Commission stated in the
Background commentary of the Guideline that it was implementing “in broader
form” the instruction to the Commission in the relevant statute, the Commission
had “indicate[d] that [it was] exercising its authority to define an offense beyond
a specific directive of Congress.” Id. (citing United States v. Soileau, 309 F.3d
877, 881 (5th Cir. 2002)).
Goncalves argues that the Commission never demonstrated its intent to
implement § 807(h) of AEDPA “in broader form” in the Background commentary
to § 2B5.1(b)(5). Specifically, Goncalves points to the “Reason for Amendment”
section of the Guidelines, which states that the amendment adding § 2B5.1(b)(5)
to the Guidelines was to “address[] section 807(h) of [AEDPA]” and “to provide
an appropriate enhancement for a defendant convicted of an international
counterfeiting offense under 18 U.S.C. § 470.” U.S.S.G. App. C. Amendment
554. Because the “Reason for Amendment” does not specifically identify 18
U.S.C. § 472, Goncalves argues that § 2B5.1(b)(5) should not apply to it.
We find Goncalves’s arguments unconvincing. Both the plain language of
the Guideline and its commentary demonstrate that the Commission clearly
intended to include 18 U.S.C. § 472 as an offense subject to § 2B5.1(b)(5). First,
the Guideline is titled “Offenses Involving Counterfeit Bearer Obligations of the
United States,” which includes 18 U.S.C. § 472 by its plain language. See
§ 2B5.1. Moreover, the § 2B5.1 commentary specifically states that the
Guideline applies to 18 U.S.C. § 472. See U.S.S.G. § 2B5.1 cmt. It is well settled
that a Guideline’s commentary “is authoritative unless it violates the
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No. 09-10713
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
Finally, while the Commission does not specifically state that it intends
to implement AEDPA “in broader form” in its “Reason for Amendment,” the
absence of such language is not dispositive in determining how a Guideline
should apply. The Seventh Circuit has noted that the circumstances
surrounding the passage of § 2B5.1(b)(5) “suggest that the Commission knew
that its enhancement applied to more sections of the United States Code than
the section specifically noted by Congress.” United States v. Hernandez, 325
F.3d 811, 815 (7th Cir. 2003). The court noted that in the “Reason for
Amendment” in the Guideline’s Background commentary, the Commission
stated that it was “addressing” Congress’s directive in § 807(h) of AEDPA when
it promulgated § 2B5.1(b)(5), which evinced a broader legislative intent than
simply “implement[ing]” the directive. See id. at 814–15 (quoting U.S.S.G. App.
C, Amendment 554). Together with the plain language of the Guideline and its
authoritative commentary, the court concluded that the Commission clearly
intended § 2B5.1(b)(5) to apply to 18 U.S.C. § 472. See id.We find the Seventh Circuit’s reasoning persuasive. Accordingly, we hold
the district court committed no legal error in applying § 2B5.1(b)(5) to
Goncalves’s conviction under 18 U.S.C. § 472.
2. No Factual Error
Goncalves next argues that there was insufficient evidence for the district
court to find that part of the relevant conduct underlying his conviction took
place outside of the United States, thus making § 2B5.1(b)(5) inapplicable.
Goncalves acknowledges that it is his own admission that forms the basis for the
district court’s finding of fact on this issue. However, Goncalves argues that his
repeated lies and misrepresentations to state and federal officials make him an
unreliable witness, and he thus lacks sufficient credibility to be taken seriously.
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No. 09-10713
We find that it is Goncalves’s instant argument that cannot be taken
seriously. “Credibility determinations are peculiarly within the province of the
trier-of-fact . . . .” United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989).
Consequently, we will not disturb a district court’s credibility determination
made at sentencing. See id. According to his PSR, Goncalves admitted to the
police that he had conspired with someone outside the United States to use
counterfeit bills to purchase items and then sell them at a profit. Goncalves has
never denied that he made this admission, nor did he present any evidence
showing where else the money may have come from. Moreover, the fact that the
district court found other statements by Goncalves to be untrue does not
foreclose a determination that in at least one situation—particularly where it
appears to be against his own interest to do so—Goncalves told the truth. A
defendant’s own admission may be competent evidence when making a finding
of fact, even when that defendant is also convicted of fraud. See, e.g., United
States v. Cothran, 302 F.3d 279, 287–88 (5th Cir. 2002); see also United States
v. Puckett, 505 F.3d 377, 387 (5th Cir. 2007).
Given Goncalves’s own admission that part of his crime took place outside
the United States, we do not find the district court’s finding of fact on this issue
to be clearly erroneous.
IV. CONCLUSION
The district court’s judgment and sentence are, in all respects,
AFFIRMED.
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