USA v. Gonzalez

Filing

PUBLISHED OPINION FILED. [09-40125 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 11/23/2010 for Appellant Ramon Gonzalez [09-40125]

USA v. Gonzalez

Case: 09-40125 Document: 00511282230 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 2, 2010 N o . 09-40125 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. R A M O N GONZALEZ D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. P E R CURIAM: D e fe n d a n t -a p p e lla n t Ramon Gonzalez appeals the enhancement of his s e n te n c e s under 21 U.S.C. § 841(b)(1)(A) that resulted in concurrent m a n d a t o r y terms of life imprisonment. Gonzalez's sole contention on appeal is that the Government failed to prove beyond a reasonable doubt that he was t h e subject of a 1988 drug conviction used to enhance his sentence, as r e q u ir e d under 21 U.S.C. § 851(c)(1). Because we find that the Government d id offer proof sufficient to meet the standard of beyond a reasonable doubt, w e affirm.

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Case: 09-40125 Document: 00511282230 Page: 2 Date Filed: 11/02/2010

STANDARD OF REVIEW W e review de novo an appellant's preserved challenge to the sufficiency o f the evidence. United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001). F A C T S AND PROCEEDINGS BELOW R a m o n Gonzalez was convicted by a jury of conspiring to possess with t h e intent to distribute more than 1,000 kilograms of marihuana and of possession with the intent to distribute the same. Before the trial, the G o v e r n m e n t filed an information pursuant to 21 U.S.C. § 851(a)(1) stating its in t e n t to seek enhancement of Gonzalez's sentence based on a 1988 felony c o n v ic t io n of possession with the intent to distribute marihuana and a 1997 fe lo n y conviction for conspiracy to possess with the intent to distribute c o c a in e . Under 21 U.S.C. § 841(b)(1)(A)(vii), an individual who violates 21 U .S .C . § 841(a)(1) by possessing with the intent to distribute 1,000 kilograms o r more of marihuana is subject to imprisonment for not less than ten years o r more than life. If prior to the offense, the same individual was convicted of t w o or more prior felony drug offenses, he is subject to a mandatory term of life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the Government files its r e q u ir e d information, if the defendant denies the allegations of the prior c o n v ic t io n s in written form, the district court must hold a hearing and s p e c ific a lly must ascertain whether the defendant affirms or denies that he h a s been previously convicted. 21 U.S.C. § 851(c)(1). If the defendant denies t h e prior convictions at that point, the Government has the burden of proving b e y o n d a reasonable doubt any issue of fact relating to the prior conviction. Id. Gonzalez filed a written objection to the Government's required in fo r m a t io n of prior convictions, in which he denied the 1988 and 1997 c o n v ic t io n s . At the sentencing hearing, Gonzalez reiterated his objections to 2

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the Government's information and again denied that he was the subject of the 1 9 8 8 and 1997 convictions. The Government introduced a judgment of the U n ite d States District Court for the Southern District of Texas, McAllen D iv is io n , that one Ramon Gonzalez was convicted, on his guilty plea, of c o n s p ir a c y to possess with intent to distribute cocaine and was sentenced to s ix ty months' confinement and four years' supervised release on December 16, 1 9 9 7 . The Government also introduced a judgment of the United States D is t r ic t Court for the Southern District of Texas, Corpus Christi Division, t h a t one Ramon Gonzalez was convicted on his guilty plea of possession with t h e intent to distribute marihuana and was sentenced to forty-one months' c o n fin e m e n t and three years' supervised release on April 22, 1988. The name o n both judgments was Ramon Gonzalez (spelled the same way) and the S o c ia l Security numbers identifying the offenders in the prior offenses m a t c h e d each other as well as the Social Security number of the defendant R a m o n Gonzalez. The 1997 conviction correctly reflects appellant's date of b ir th as September 26, 1950; the 1988 conviction does not reflect any date of b ir th information. There was no evidence of any other prior conviction. The Government also introduced the testimony of Carlos Rosales, who s e r v e d as Gonzalez's probation officer following his release from prison after t h e 1997 conviction. Rosales testified that while serving as Gonzalez's p r o b a t io n officer, he was aware that the 1997 conviction was Gonzalez's s e c o n d conviction and that his first conviction arose in Corpus Christi. Rosales also admitted that he did not supervise Gonzalez after his first c o n v ic t io n and did not recall whether he and Gonzalez had discussed any p r io r offenses. He stated that he usually verified with the probationer the in fo r m a t io n in his file and that he did not have any reason to believe that he d id not verify the prior conviction with Gonzalez. 3

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The district court overruled Gonzalez's sentencing objections after t a k in g evidence, and the court sentenced Gonzalez to concurrent life s e n te n c e s of imprisonment, to be followed by concurrent life terms of s u p e r v is e d release. The district court noted that if Gonzalez were not subject t o a mandatory life sentence under section 841(b)(1)(A), the court would have s e n te n c e d him to 360 months' confinement. Gonzalez appeals only the use of t h e 1988 felony drug offense for sentencing enhancement purposes under s e c t io n 841(b)(1)(A). DISCUSSION G o n z a le z asserts that the Government failed to prove beyond a r e a s o n a b le doubt that he was the subject of the 1988 drug conviction used to e n h a n c e his sentence. Before addressing Gonzalez's primary argument, we

fir s t address whether the defendant was barred from challenging this prior c o n v ic t io n . The statute at issue contains a provision that prohibits a d e fe n d a n t from challenging "the validity of any prior conviction alleged under t h is section which occurred more than five years before the date of the in fo r m a t io n alleging such prior conviction." 21 U.S.C. § 851(e). Other circuits h a v e concluded that this provision does not prevent a defendant from arguing t h a t he was not the person who was convicted of the offense. See United S ta te s v. Dickerson, 514 F.3d 60, 65 (1st Cir. 2008); United States v. Green, 1 7 5 F.3d 822, 835 (10th Cir. 1999). We agree that Gonzalez's challenge to his p r io r conviction based on identity is not barred by section 851(e). He is not c h a lle n g in g "the validity" of the 1988 conviction, but only that it is not a c o n v ic t io n of him; and, if it is not a conviction of him, he likely had no notice o f it or reason to sooner challenge it. G o n z a le z argues that the 1988 judgment of conviction by itself is not s u ffic ie n t to establish that he was the person who was convicted of that 4

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offense. This court has addressed challenges to the sufficiency of the evidence o f a prior conviction under this statute twice before. In both cases, the G o v e r n m e n t produced physical evidence in the form of fingerprint exemplars t o prove that the defendant was convicted of the prior offenses. See United S ta te s v. Jyles, 363 F. App'x 465, 466 (5th Cir. 2009); United States v. L a m p to n , 158 F.3d 251, 260 (5th Cir. 1998). In neither case did we hold that p h y s ic a l evidence was a requirement for proving a prior conviction beyond a r e a s o n a b le doubt. The defendant cites to several sister circuit cases where the G o v e r n m e n t was found to have not proved the prior convictions beyond a r e a s o n a b le doubt. See e.g. United States v. Kellam, 568 F.3d 125 (4th Cir. 2 0 0 9 ); United States v. Sanchez-Garcia, 461 F.3d 939 (8th Cir. 2006); United S ta te s v. Green, 175 F.3d 822 (10th Cir. 1999). In each of those cases, there w a s some form of discrepancy with respect to the issue of identity among the v a r io u s documents proving the prior convictions. Here, there are no such d is c r e p a n c ie s . The defendant's name, spelled correctly, and his Social S e c u r it y number appeared on both prior convictions. Although Gonzalez a lle g e s that identity theft is not uncommon, he does not offer any evidence t h a t another person used his Social Security number at any time in the past. The fact that the addresses on the older convictions are different from each o t h e r is virtually meaningless, given that the convictions are nine years a p a r t .* The evidence the Government has provided is sufficient to support t h e district court's finding that, beyond a reasonable doubt, the instant d e fe n d a n t -a p p e lla n t was convicted by the 1988 judgment of conviction.

The 1988 conviction shows an address in Mission, Texas; the 1997 conviction shows an address in San Juan, Texas.

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CONCLUSION F o r the foregoing reasons, we AFFIRM the district court's sentence of R a m o n Gonzalez to two concurrent terms of life imprisonment, each followed b y concurrent life terms of supervised release.

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