USA v. Jeremy Goncalves

Filing

USA v. Jeremy Goncalves

Doc. 0

Case: 09-10713

Document: 00511214004

Page: 1

Date Filed: 08/25/2010

REVISED AUGUST 25, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

N o . 09-10713

FILED
August 3, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA,

P la in t iff - Appellee v. J E R E M Y ALEXANDER GONCALVES,

D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM: D e fe n d a n t Jeremy Alexander Goncalves appeals his sentence of thirtyt h r e e months' incarceration for his convictions of passing counterfeit notes and fo r using a falsely altered military discharge certificate. Goncalves argues that t h e district court miscalculated his sentence under the United States Sentencing C o m m is s io n Guidelines Manual (the "Guidelines" or "U.S.S.G."). fo llo w in g reasons, we AFFIRM the district court's sentence. I . FACTUAL AND PROCEDURAL BACKGROUND For the

Dockets.Justia.com

Case: 09-10713

Document: 00511214004

Page: 2

Date Filed: 08/25/2010

No. 09-10713 I n August 2007, Goncalves received a bad-conduct discharge from the U n ite d States Army. After his discharge, Goncalves returned to his hometown o f 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 a lt e r e d copy of his certificate of discharge from the Army. In the certificate of d is c h a r g e , Goncalves indicated that he received an honorable discharge from the A r m y , served in special forces for over two years, and last held the rank of c a p ta in . All of these assertions were false. Goncalves also fraudulently

r e p r e s e n t e d to Bell in accompanying documents that he had graduated from the U n iv e r s it y of Massachusetts and was currently employed with Northeast U tilitie s . B a s e d on Goncalves's representations, Bell hired Goncalves, paying for h im 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

le a r n e d that Goncalves had fraudulently altered his certificate of discharge from t h e Army and lied about his educational and work background. Bell terminated G o n c a lv e s in June 2008. I n August 2008, Goncalves attempted to purchase a dirt bike through the I n t e r n e t from Wilfredo Mendieta for $2,100. When Goncalves and Mendieta met fo r the purchase, Goncalves handed Mendieta what appeared to be twenty-one $ 1 0 0 bills. However, Mendieta later told authorities that he thought that the b ills "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 t o police, where the bills were conclusively identified as counterfeit federal r e s e r v e notes, many bearing the same serial number. T e x a s state police officers subsequently identified Goncalves as the p u r c h a s e r of the dirt bike and arrested him. After his arrest, Goncalves

a d m it t e d to the officers that he had used counterfeit notes to purchase the dirt 2

Case: 09-10713

Document: 00511214004

Page: 3

Date Filed: 08/25/2010

No. 09-10713 b ik e from Mendieta. Goncalves further stated that he had entered into an a r r a n g e m e n t with a Nigerian man in France whom Goncalves had met on the In tern et. According to Goncalves, the Nigerian man had agreed to send

G o n c a lv e s counterfeit notes that he would first use to make purchases of items, a n d that he would then sell at a profit. The scheme then involved Goncalves s e n d in g 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 m a il containing the fraudulent notes that he used to purchase the dirt bike. F e d e r a l officials performed a note history on the counterfeit bills used in G o n c a lv e s 's fraudulent purchase of the dirt bike. The note history revealed that s o m e o n e had used an additional twenty $100 counterfeit bills with the same s e r ia l numbers to purchase a home-theater system from Circuit City. A

s u b s e q u e n t investigation revealed that Goncalves had used the additional fr a u d u le n t bills to purchase the home-theater system. G o n c a lv e s pleaded guilty in federal court to one count of Uttering C o u n te r fe it Obligations of the United States, in violation of 18 U.S.C. § 472, and o n e count of Using Falsely Altered Military Discharge Certificate, in violation o f 18 U.S.C. §§ 498 & 2. Prior to sentencing, a United States Probation Officer s u b m it t e d a Presentence Report (PSR), which calculated that Goncalves's G u id e lin e s range of imprisonment was twenty-seven to thirty-three months. G o n c a lv e s objected to the recommended Guidelines sentence calculation in the PSR. First, Goncalves argued that his offenses should have been grouped p u r s u a n t to U.S.S.G. § 3D1.2(d), which allows for grouping of offenses that " in v o lv e substantially the same harm." Such a grouping would have resulted in a two-level reduction in his Guidelines sentence. Goncalves also argued that the P S R 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

3

Case: 09-10713

Document: 00511214004

Page: 4

Date Filed: 08/25/2010

No. 09-10713 d is t r ic t court overruled both objections and sentenced Goncalves to thirty-three m o n th s ' incarceration, which was at the top of the calculated Guidelines range. G o n c a lv e s now appeals his sentence and reiterates the objections he made a t sentencing. I I . STANDARD OF REVIEW W e review a district court's sentencing decision for abuse of discretion. See U n ite d States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010). For properly

p r e s e r v e d claims, we review the court's application and interpretation of the G u id e lin e s de novo. See United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir. 2 0 1 0 ). A district court's factual findings, which we review for clear error, must b e supported by a preponderance of the evidence. See id. "`A factual finding is n o t clearly erroneous as long as it is plausible in light of the record read as a w h o le .'" United States v. McMillan, 600 F.3d 434, 457­58 (5th Cir. 2010)

(q u o tin g United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996)). I I I . DISCUSSION A . No Error for Not Grouping the Offenses under § 3D1.2(d) G o n c a lv e s first argues that the district court erred by failing to group his t w o convictions under U.S.S.G. § 3D1.2. Specifically, Goncalves argues that b e c a u s e § 3D1.2(d) lists both of the crimes for which he was convicted in a list o f offenses "to be grouped," the court erred in finding that the Guideline did not a p p ly . S e c t io n 3D1.2 states that "[a]ll counts involving substantially the same h a r m shall be grouped together into a single Group." The section then sets forth fo u r different categories of offenses that "involve substantially the same harm w it h in the meaning of this rule." The only such category at issue here is that c o n t a in e d in subsection (d), which applies in the following circumstance: When the offense level is determined largely on the basis of the total a m o u n t of harm or loss, the quantity of a substance involved, or

4

Case: 09-10713

Document: 00511214004

Page: 5

Date Filed: 08/25/2010

No. 09-10713 s o m e other measure of aggregate harm, or if the offense behavior is o n g o in g or continuous in nature and the offense guideline is written t o cover such behavior. I d .1 Subsection (d) further sets forth three categories of Guidelines that cover c e r t a in offenses and how those offenses are treated under § 3D1.2(d). The first c a t e g o r y lists Guidelines covering offenses that "are to be grouped" under the s u b s e c t io n . Id. The second category lists Guidelines covering offenses that are s p e c ific a lly excluded from grouping under the subsection. Finally, the third c a t e g o r y 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 C ir . 2001). T h e Guidelines covering Goncalves's two offenses are found on the same lin e 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 s e rule exists regarding their grouping. However, we have held that "grouping

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.

5

Case: 09-10713

Document: 00511214004

Page: 6

Date Filed: 08/25/2010

No. 09-10713 is not mandatory or automatic simply because a defendant is charged with an o ffe n s e that falls under a guideline listed in § 3D1.2(d)." United States v.

L o p e z ­ U r b in a , 434 F.3d 750, 763 (5th Cir. 2005) (citing United States v. Solis, 2 9 9 F.3d 420, 459­60 (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 W h e n deciding what criteria to consider when determining whether g r o u p in g is appropriate under the first category of offenses in § 3D1.2(d), we look t o the Guideline's Commentary. See United States v. Patterson, 962 F.2d 409, 4 1 6 (5th Cir. 1992). Application Note 6 of the Commentary states that "[c]ounts in v o lv in g offenses to which different offense guidelines apply are grouped t o g e t h e r under subsection (d) if the offenses are of the same general type and o t h e r w is e 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 t y p e ' of offense is to be construed broadly." Id. G o n c a lv e s argues that his offenses are of the "same general type" because t h e y are both acts of fraud and involve economic loss. However, these

s im ila r it ie s alone are insufficient. See, e.g., United States v. Brisson, 448 F.3d 9 8 9 , 992 (7th Cir. 2006) (convictions for bank fraud and fraud against the United S t a te s were not "of the same general type" simply because they were "economic o ffe n s e s arising out of the failed ownership of the hotel"). Furthermore, such s im ila r it ie s are all that exist between the two offenses. One of the offenses for w h ic h Goncalves was convicted took place in August 2008 and involved the

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.

2

6

Case: 09-10713

Document: 00511214004

Page: 7

Date Filed: 08/25/2010

No. 09-10713 p u r c h a s e of private property with counterfeit bills. The other offense took place in May 2007 and involved the alteration of a military certificate of discharge in o r d e r to deceive a company into hiring him. The crimes involve different

s c h e m e s , different objectives, and different victims, and they took place at d iffe r e n t 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 c o u r t 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, a n d two separate events); Brisson, 448 F.3d at 992 (offenses not of the same g e n e r a l type under § 3D1.2(d) when they involved, inter alia, different victims). F in a lly , even if the two offenses were "of the same general type," a review o f Goncalves's PSR demonstrates that the offense level for either crime was not " d e t e r m in e d 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 q u e s t io n for Goncalves's counterfeiting conviction, and the amount of harm or l o s s was not at issue for his material alteration offense except to calculate r e s t it u t io n . In addition, Goncalves has not shown that his offense level has been c a lc u la t e d pursuant to Guidelines written to cover "behavior [that] is ongoing or c o n t in u o u s in nature." Id. Goncalves's alteration of a military document was a d is c r e te event, as was the purchase of a home-theater system with the use of c o u n t e r fe it bills. Thus, the offenses do not "otherwise meet the criteria for g r o u p in g under" § 3D1.2(d). A c c o r d in g ly , we find no error in the district court's decision not to group t h e offenses for sentencing purposes. B . No Error in Applying § 2B5.1(b)(5) G o n c a l v e s next argues that the district court erred by applying the s e n te n c e enhancement in U.S.S.G. § 2B5.1(b)(5) to his conviction for passing

7

Case: 09-10713

Document: 00511214004

Page: 8

Date Filed: 08/25/2010

No. 09-10713 c o u n t e r fe it notes, in violation of 18 U.S.C. § 472.3 This subsection of the

G u id e lin e s allows for a two-level increase in a sentence "[i]f any part of the o ffe n s e was committed outside the United States." U.S.S.G. § 2B5.1(b)(5). G o n c a lv e s 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 b y applying § 2B5.1(b)(5) to his conviction under 18 U.S.C. § 472 because the G u id e lin e applies only to convictions under 18 U.S.C. § 470. Alternatively, he a r g u e s that there is insufficient evidence from which to find that part of the r e le v a n t conduct took place outside the United States. We find no merit in e it h e r contention. 1 . No Legal Error G o n c a lv e s first argues that the district court erred as a matter of law by a p p ly in g § 2B5.1(b)(5) to his conviction under 18 U.S.C. § 472. This is because, G o n c a lv e s asserts, the enhancement applies only to international counterfeiting o ffe n s e s 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.

8

Case: 09-10713

Document: 00511214004

Page: 9

Date Filed: 08/25/2010

No. 09-10713 A n t ite r r o r is m and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 1 0 4 -1 3 2 , § 807(h), 110 Stat. 1214, 1310, which states that "the Commission shall a m e n d the sentencing guidelines prescribed by the Commission to provide an a p p r o p r i a t e enhancement of the punishment for a defendant convicted under s e c t io n 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 o f § 2B5.1(b)(5) goes beyond Congress's intent. U n d e r 28 U.S.C. § 994(a), the Sentencing Commission is vested with the a u t h o r it y to promulgate Guidelines that are "consistent with all pertinent p r o v is io n s of any Federal statute." Accordingly, "Congress has delegated to the C o m m is s io n `significant discretion in formulating guidelines' for sentencing c o n v ic t e d federal offenders." United States v. LaBonte, 520 U.S. 751, 757 (1997) (q u o tin g Mistretta v. United States, 488 U.S. 361, 377 (1989)). Based on this d i s c r e t io n and authority, "the Sentencing Commission has the power and the d u t y not only to interpret specific provisions of federal statutes regulating c r im in a l punishment . . . but also to establish . . . standards designed to promote u n ifo r m and rational federal sentencing." United States v. Lauer, 148 F.3d 766, 7 6 9 (7th Cir. 1998) (citing, e.g., Mistretta, 488 U.S. at 367­70). Accordingly, we h a v e held that the Commission may enact Guidelines that are not inconsistent w it h federal law but which are broader than a congressional directive when the C o m m is s io n evinces a clear intent to do so. See United States v. Dale, 374 F.3d 3 2 1 , 330 (5th Cir. 2004), rev'd on other grounds, 543 U.S. 1113 (2005). Goncalves h a s failed to show how applying § 2B5.1(b)(5) to 18 U.S.C. § 472 would be in c o n s is t e n t with federal law or an abuse of the Commission's discretion. Thus w e do not find the Commission exceeded its authority in doing so.

18 U.S.C. § 470.

9

Case: 09-10713

Document: 00511214004

Page: 10

Date Filed: 08/25/2010

No. 09-10713 N e v e r t h e le s s , Goncalves further argues that our holding in Dale otherwise fo r e c lo s e s the application of § 2B5.1(b)(5) to 18 U.S.C. § 472. In Dale, we held t h a t the Sentencing Commission had not exceeded its authority by including n o n -fe d e r a lly insured entities in a Guideline when the statute authorizing the G u id elin e's promulgation mentioned only federally insured financial institutions. See Dale, 374 F.3d at 330. In addition, because the Commission stated in the B a c k g r o u n d commentary of the Guideline that it was implementing "in broader fo r m " the instruction to the Commission in the relevant statute, the Commission h a d "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 8 7 7 , 881 (5th Cir. 2002)). G o n c a lv e s argues that the Commission never demonstrated its intent to im p le m e n t § 807(h) of AEDPA "in broader form" in the Background commentary t o § 2B5.1(b)(5). Specifically, Goncalves points to the "Reason for Amendment" s e c t io n of the Guidelines, which states that the amendment adding § 2B5.1(b)(5) t o the Guidelines was to "address[] section 807(h) of [AEDPA]" and "to provide a n appropriate enhancement for a defendant convicted of an international c o u n t e r fe itin g offense under 18 U.S.C. § 470." U.S.S.G. App. C. Amendment 5 5 4 . 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. W e find Goncalves's arguments unconvincing. Both the plain language of t h e Guideline and its commentary demonstrate that the Commission clearly in t e n d e d to include 18 U.S.C. § 472 as an offense subject to § 2B5.1(b)(5). First, t h e Guideline is titled "Offenses Involving Counterfeit Bearer Obligations of the U n ite d States," which includes 18 U.S.C. § 472 by its plain language. See § 2B5.1. Moreover, the § 2B5.1 commentary specifically states that the

G u id e lin e applies to 18 U.S.C. § 472. See U.S.S.G. § 2B5.1 cmt. It is well settled t h a t a Guideline's commentary "is authoritative unless it violates the 10

Case: 09-10713

Document: 00511214004

Page: 11

Date Filed: 08/25/2010

No. 09-10713 C o n s t it u t io n or a federal statute, or is inconsistent with, or a plainly erroneous r e a d in g of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). F in a lly , while the Commission does not specifically state that it intends t o implement AEDPA "in broader form" in its "Reason for Amendment," the a b s e n c e of such language is not dispositive in determining how a Guideline s h o u ld apply. The Seventh Circuit has noted that the circumstances

s u r r o u n d in g the passage of § 2B5.1(b)(5) "suggest that the Commission knew t h a t its enhancement applied to more sections of the United States Code than t h e section specifically noted by Congress." United States v. Hernandez, 325 F .3 d 811, 815 (7th Cir. 2003). The court noted that in the "Reason for

A m e n d m e n t " in the Guideline's Background commentary, the Commission s t a t e d 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 s im p ly "implement[ing]" the directive. See id. at 814­15 (quoting U.S.S.G. App. C , Amendment 554). Together with the plain language of the Guideline and its a u t h o r it a t iv e commentary, the court concluded that the Commission clearly in t e n d e d § 2B5.1(b)(5) to apply to 18 U.S.C. § 472. See id. W e find the Seventh Circuit's reasoning persuasive. Accordingly, we hold t h e district court committed no legal error in applying § 2B5.1(b)(5) to G o n c a lv e s 's conviction under 18 U.S.C. § 472. 2 . No Factual Error G o n c a lv e s next argues that there was insufficient evidence for the district c o u r t to find that part of the relevant conduct underlying his conviction took p la c e 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 d is t r ic t court's finding of fact on this issue. However, Goncalves argues that his r e p e a t e d lies and misrepresentations to state and federal officials make him an u n r e lia b le witness, and he thus lacks sufficient credibility to be taken seriously. 11

Case: 09-10713

Document: 00511214004

Page: 12

Date Filed: 08/25/2010

No. 09-10713 W e find that it is Goncalves's instant argument that cannot be taken s e r io u s ly . "Credibility determinations are peculiarly within the province of the t r ie r -o f-fa c t . . . ." United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989). Consequently, we will not disturb a district court's credibility determination m a d e at sentencing. See id. According to his PSR, Goncalves admitted to the p o l i c e that he had conspired with someone outside the United States to use c o u n t e r fe it bills to purchase items and then sell them at a profit. Goncalves has n e v e r denied that he made this admission, nor did he present any evidence s h o w in g where else the money may have come from. Moreover, the fact that the d is t r ic t court found other statements by Goncalves to be untrue does not fo r e c lo s e a determination that in at least one situation--particularly where it a p p e a r s to be against his own interest to do so--Goncalves told the truth. A d e fe n d a n t 's own admission may be competent evidence when making a finding o f fact, even when that defendant is also convicted of fraud. See, e.g., United S ta te s v. Cothran, 302 F.3d 279, 287­88 (5th Cir. 2002); see also United States v . Puckett, 505 F.3d 377, 387 (5th Cir. 2007). G iv e n Goncalves's own admission that part of his crime took place outside t h e United States, we do not find the district court's finding of fact on this issue t o be clearly erroneous. I V . CONCLUSION T h e district court's judgment and sentence are, in all respects, A F F IR M E D .

12