USA v. Israel Gonzalez-Paso

Filing

OPINION filed: For the reasons set forth above, we AFFIRM the judgment of the district court. Decision not for publication. Karen Nelson Moore, Jeffrey S. Sutton, and Helene N. White (authoring), Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
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FILED

No. 15-5469

Dec 15, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ISRAEL GONZALEZ-PASOS,
Defendant-Appellant.

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY

BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Israel Gonzalez-Pasos pleaded guilty to a single
count of conspiracy to distribute heroin. He was sentenced to 264 months’ imprisonment—
twenty-four months above the statutory mandatory minimum sentence that determined his
guideline sentence1—and now appeals, asserting that (1) he was prejudiced by the district court’s
failure to conduct a § 851(b) colloquy related to a predicate felony-drug-offense conviction;
(2) he had ineffective assistance of counsel; (3) an upward variance was substantively
unreasonable; and (4) the imposition of a sentence consecutive with an unrelated, undischarged
sentence was procedurally unreasonable.2 We AFFIRM without prejudice to Gonzalez-Pasos
raising an ineffective-assistance claim in a motion to vacate or set aside his conviction and
sentence pursuant to 28 U.S.C. § 2255.

1
2

Absent a mandatory minimum, the guideline range would have been 151 to 188 months.

Gonzalez-Pasos returned to Mexico before his indictment and was arrested in Brooks County, Texas for
illegal reentry into the United States, in violation of 8 U.S.C. § 1326. He pleaded guilty and was sentenced to 27
months’ imprisonment.

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I
Gonzalez-Pasos is a citizen of Mexico. He was indicted as a member of a black-tar
heroin distribution ring active in the Eastern District of Kentucky, along with Tamara Wombles,
Duran Wombles, Lauren Summers, and Jesus Lizarraras-Estudillo. The Government alleged the
conspiracy involved a drug quantity of one kilogram or more, a threshold that triggers a
mandatory ten-year minimum sentence under 21 U.S.C. § 841(b)(1)(A) and a base offense level
of 30 under the Sentencing Guidelines. U.S.S.G. § 2D1.1(c)(5).
On January 12, 2015, immediately before his trial was to begin, Gonzalez-Pasos
informed the district court through counsel that he did not wish to proceed to trial and would
instead plead guilty, reserving the right to contest the alleged drug quantity at sentencing. After
the district court conducted a Rule 11 colloquy, Gonzalez-Pasos pleaded guilty through an
interpreter to the sole count charged, conspiracy to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. At sentencing three months later, he was sentenced to 264
months’ imprisonment, to run consecutively to his undischarged illegal-reentry sentence. This
sentence included a 240-month minimum based on a one-kilogram-or-more drug quantity and a
predicate felony drug conviction, see 21 U.S.C. 841(b)(1)(A), and a 24-month upward variance.
II
A
Gonzalez-Pasos first argues that he was prejudiced by the district court’s failure to
conduct a § 851(b) colloquy related to a predicate felony drug conviction. Section 841(b)

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subjects defendants with finalized prior “felony drug offense” convictions to enhanced minimum
sentences.3 See 21 U.S.C. § 841(b)(1)(A)–(C).
The use of predicate convictions to increase punishment is governed procedurally by
21 U.S.C. § 851. When the Government seeks to use a predicate conviction, § 851(a) requires it
to file an information prior to trial or the entry of a guilty plea setting forth the conviction to be
relied upon. Here, the Government filed an information prior to Gonzalez-Pasos’s trial date and
guilty plea, alleging that he had been convicted on October 23, 2007 of Possession of a
Controlled Substance First Degree, Case No. BA322904, by the Superior Court of Louisiana.
Both parties now acknowledge that this information erroneously identified the state court: the
conviction actually occurred in the Superior Court of Los Angeles.4

Gonzalez-Pasos

acknowledges on appeal that he was convicted of violating Cal. Health & Safety Code § 11351,
although neither the information nor the pre-sentence report cite this statute.
A district court must inquire after conviction but before sentencing whether the defendant
affirms or denies that he has been previously convicted as alleged in an information, and must
further inform the defendant that he must challenge the validity of the conviction prior to the
imposition of sentence. 21 U.S.C. § 851(b). Challenges to the validity of a predicate conviction
are subject to a five-year statute of limitations running from the date of conviction. 21 U.S.C.
§ 851(e). We review a district court’s failure to conduct a § 851(b) colloquy for harmless error.
United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998); see also United States v. Fields, 354 F.
App’x 254, 257 (6th Cir. 2009) (“This [c]ourt has repeatedly found the failure to inquire under
3

A “felony drug offense” is an “offense that is punishable by imprisonment for more than one year under
any law of . . . a State . . . that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances.” 21 U.S.C. § 802(44) (emphasis added).
4

The pre-sentence report correctly identified the Superior Court of Los Angeles as the convicting court.
Gonzalez-Pasos’s trial counsel affirmed at the sentencing hearing that he and his client orally reviewed the report “at
length” with the assistance of an interpreter. Sentencing Tr., R. 229, at 3. He also produced a Spanish translation of
the report, although at the time of sentencing Gonzalez-Pasos had not seen it.

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§ 851(b) to be harmless when a defendant receives adequate notice of the government’s intent to
use the prior conviction at sentencing and fails to file an objection under § 851(c).”)
During the plea colloquy, the court apprised Gonzalez-Pasos of the Government’s priorconviction allegation and that a prior “felony drug offense” conviction would result in an
increased minimum sentence. When the court asked whether he had the predicate conviction
alleged in the Government’s information, Gonzalez-Pasos replied “[y]es” through an interpreter.
Plea Tr., R. 230, at 10–11.
Gonzalez-Pasos argues on appeal that the § 851(b) colloquy was deficient and in essence
did not occur. The district court held a § 851(b) colloquy during which Gonzalez-Pasos affirmed
that he had the predicate conviction alleged in the Government’s information. However, the
district court failed to inform Gonzalez-Pasos of the requirement that he challenge the validity of
the conviction prior to sentencing. Nevertheless, as the Government argues, this failure was
harmless in that the five-year statute of limitations for a validity challenge expired years earlier.
See United States v. Craft, 495 F.3d 259, 265 (6th Cir. 2007). The district court also failed to
discuss the specific allegation, telling Gonzalez-Pasos only that an information had been filed
alleging that he had a “prior felony drug conviction” and asking whether he acknowledged that
he had such a conviction. Plea Tr., R. 230, at 10–11. Had the court described the allegation,
Gonzalez-Pasos may well have denied having a Louisiana drug conviction. But this error too
was harmless, as no one disputes Gonzalez-Pasos was convicted of possessing a controlled
substance in 2007 in Los Angeles under the case number BA322904. Finally, we note that the
court harmlessly held the colloquy contemporaneously with the guilty plea, rather than after
conviction as § 851(b) directs. See United States v. King, 127 F.3d 483, 489 (6th Cir. 1997)

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(“We recognize as well the importance of interpreting § 851’s notice requirements so as to avoid
elevating form over substance.”).
This leaves Gonzalez-Pasos’s argument that the California statute he was convicted under
is not necessarily a predicate offense under § 841(b). Gonzalez-Pasos erroneously refers to the
term “drug trafficking offense” in his brief on appeal. The term “drug trafficking offense” is
used in parts of the Sentencing Guidelines, e.g., U.S.S.G. § 2L1.2(b)(1)(A) (illegal reentry), but
is irrelevant here because the mandatory minimum sentence under § 841(b) is triggered by a
prior “felony drug offense.” See 21 U.S.C. § 841(b)(1)(A)–(C) (using the term “felony drug
offense”). A violation of Cal. Health & Safety Code § 11351 (eff. Mar. 29, 2000)—which
prohibits possessing or purchasing a controlled substance for purposes of sale—falls within
21 U.S.C. § 802(44)’s broad definition of “felony drug offense” as a violation of a statute that
“prohibits or restricts conduct relating to [certain] drugs . . . .”
B
Gonzalez-Pasos next argues that the district court witnessed a lack of advocacy by trial
counsel at the sentencing hearing, and should have held a hearing to re-determine whether his
guilty plea was in fact voluntary.

However, because Gonzalez-Pasos challenged the

voluntariness of his plea at the sentencing hearing, the district court did address whether his plea
was knowing and voluntary and concluded that it was. Whether counsel was ineffective in
advising Gonzalez-Pasos regarding the plea is a separate question as to which we have no record.
Gonzales-Pasos is free to pursue this issue in a § 2255 proceeding.
Gonzalez-Pasos further argues that he was denied the effective assistance of counsel at
sentencing due to his attorney’s lack of advocacy in failing to challenge the drug quantity

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involved.5 Gonzalez-Pasos’s arguments claim that trial counsel’s conduct at sentencing both
(1) prejudiced his client at sentencing itself and (2) called into question whether his client had
had effective assistance of counsel to make a “voluntary and intelligent” guilty plea at the earlier
plea hearing. See Railey v. Webb, 540 F.3d 393, 417 (6th Cir. 2008).
To prevail on an ineffective-assistance claim, a defendant must prove that his trial
counsel’s representation was “deficient”: not merely “below average,” but “below an objective
standard of reasonableness.” United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014) (citing
Strickland v. Washington, 466 U.S. 668, 688 (1984)).

In addition to having deficient

representation, a defendant must have been “prejudiced by the substandard performance” of his
counsel. Id. A defendant demonstrates “prejudice” when he shows that but for his attorney’s
unprofessional errors, “there is a reasonable probability that” the outcome of a proceeding
“would have been different.” Id. (quoting Strickland, 466 U.S. at 694). Further, deprivation of
counsel at a critical procedural stage such as sentencing is a structural error that requires reversal
even without a showing of prejudice. United States v. Ross, 703 F.3d 856, 874 (6th Cir. 2012).
Deprivation of counsel includes “constructive denial of counsel, when, although counsel is
present, ‘the performance of counsel is so inadequate that, in effect, no assistance of counsel is
provided.’” Rickman v. Bell, 131 F.3d 1150, 1155 (6th Cir. 1997) (quoting United States v.
Cronic, 466 U.S. 648, 654 n. 11 (1984)) (emphasis omitted).
We generally do not consider ineffective-assistance claims on direct appeal because the
parties have not had an opportunity to develop an evidentiary record supporting or rebutting the
Massaro v. United States, 538 U.S. 500, 504–505 (2003) (“When an ineffective-

claim.

assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a
trial record not developed precisely for the object of litigating or preserving the claim and thus
5

He is represented by new counsel on appeal.

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often incomplete or inadequate for this purpose.”); United States v. Williams, 612 F.3d 500, 508
(6th Cir. 2010).
Drug quantity was the most important factual issue at sentencing, driving both
Defendant’s statutory minimum sentence and his base-offense-level calculation under the
Sentencing Guidelines.6 Gonzalez-Pasos argues that trial counsel failed to make non-frivolous
arguments regarding drug quantity based on admissions counsel elicited on cross-examination of
the Government’s witnesses at the sentencing hearing. Instead, counsel conceded that his client
had admitted to one kilogram or more in his plea colloquy, when in fact Gonzalez-Pasos
specifically reserved that issue to be determined by the district court. Trial counsel further
conceded drug quantity by stating that he personally weighed the seized evidence (without
stating the quantity he measured) and found it consistent with the Government’s allegations; he
also affirmatively declined to object to the pre-sentence report’s one-to-three kilogram baselevel-offense calculation. Additionally, trial counsel failed to submit a sentencing memorandum
and erroneously advised the court that it lacked discretion to impose the sentence to run
concurrently with Gonzalez-Pasos’s undischarged illegal-reentry sentence.
These allegations of ineffective assistance of sentencing counsel are troubling; they
deserve consideration, but not on direct appeal. To sustain an ineffective-assistance claim, a
defendant must show either that trial counsel’s actions or non-actions were not supported by a
reasonable strategy and that these actions or non-actions were prejudicial, Massaro, 538 U.S. at
505 (citing Strickland, 466 U.S. at 668), or that he was constructively denied counsel, Rickman,
6

Minimum prison sentences for heroin-related violations of § 841 fall along three quantity-determined
tiers. There is no specified minimum for less than 100 grams; there is a five-year minimum for more than 100
grams but less than a kilogram; and there is a ten-year minimum for a kilogram or more. These penalty provisions
include higher minimum sentences for aggravating factors such as when the defendant has a prior felony-drugoffense conviction. See 21 U.S.C. § 841(b)(1)(A)–(C). Further, under the Sentencing Guidelines, 30 is the base
offense level for a violation of § 841(a)(1) involving at least one but less than three kilograms of heroin. U.S.S.G.
§ 2D1.1(c)(5).

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131 F.3d at 1155–56. The record before us is insufficient to determine the merits of GonzalezPasos’s ineffective-assistance claims on direct appeal, and we therefore decline to address the
merits, without prejudice to Gonzalez-Pasos raising these and any other ineffective-assistance
claims in a § 2255 proceeding.
C
Gonzalez-Pasos next argues that the district court’s 24-month upward variance (from
240 months’ minimum imprisonment to 264 months) was substantively unreasonable because it
was more than necessary to accomplish the statutory purposes of sentencing.
We review the substantive reasonableness of a sentence for abuse of discretion. United
States v. Bolds, 511 F.3d. 568, 578 (6th Cir. 2007) (citing Gall v. United States, 552 U.S. 38, 41
(2007)). A sentence must be “adequate, but not greater than necessary to accomplish the
sentencing goals identified by Congress in 18 U.S.C. § 3553(a).” United States v. Cochrane, 702
F.3d 334, 345 (6th Cir. 2012) (internal quotation omitted).

A sentence must also be

“proportionate to the seriousness surrounding the circumstances of the offense and offender,”
United States v. Smith, 505 F.3d 463, 470 (6th Cir. 2007) (internal quotation omitted), and it may
not be imposed arbitrarily, based on impermissible sentencing factors, or without consideration
of relevant sentencing factors. United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).
A sentencing court must not give unreasonable weight to a factor. Id.
Gonzalez-Pasos’s sentence is between 64 and 240 months greater than those of his four
co-conspirators. He contends that these disparities are unwarranted. Among the sentencing
factors courts must consider is “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct . . . .” 18 U.S.C.
§ 3553(a)(6). Sentencing disparities are justified, however, when there are disparities between

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co-defendants’ conduct or records. See United States v. Vowell, 516 F.3d 503, 513 (6th Cir.
2008).
In deciding to impose an upward variance, the district court explained that it considered
the disparity factor but the circumstances led it to conclude that any disparity was not
unwarranted. The district court adequately considered this factor. Gonzalez-Pasos and his coconspirators were charged with different counts based on individual conduct investigated by law
enforcement.

Although Gonzalez-Pasos was charged with only one count—conspiracy to

distribute heroin—it was a serious offense that resulted in a 240-month minimum sentence due to
the drug quantity involved and his prior felony-drug-offense conviction. Further, the record
reflects that the 24-month upward variance was the result of individualized consideration by the
district court. In announcing sentence, the court cited the public-health impact of black-tar
heroin on, and Gonzalez-Pasos’s role in bringing it to, the community, and stated that it was
imposing a 24-month upward variance to “send a message” of deterrence to Gonzalez-Pasos and
others. Sentencing Tr., R. 229, at 63. As part of its sentencing decision, the district court also
considered Gonzalez-Pasos’s history of repeatedly entering the United States illegally.
Lastly, Gonzalez-Pasos contends that the minimum sentence would have been sufficient
to achieve specific and general deterrence. This is a matter committed to the district court’s
discretion, however. Bolds, 511 F.3d at 578. We give “due deference to the [d]istrict [c]ourt’s
reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.”
Gall, 552 U.S. at 59–60. Our role is to consider whether the district court abused that discretion
by imposing a 24-month upward variance to achieve deterrence, and we conclude that it did not.

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D
Finally, Gonzalez-Pasos argues that his sentence was procedurally inadequate because
the district court did not sufficiently explain its decision to run his drug-conspiracy sentence
consecutively to his earlier-imposed illegal-reentry sentence.

When a court sentences a

defendant who is already subject to an undischarged term of imprisonment, it generally has
discretion to run those terms concurrently or consecutively. 18 U.S.C. § 3584(a). In deciding
whether to impose a concurrent or consecutive sentence, a court must consider the § 3553(a)
factors.

Id. at § 3584(b).

The Sentencing Guidelines provide further factors to consider,

including the type and length of the prior undischarged sentence, time served and time likely to
be served before release, and any other circumstances relevant to determining an appropriate
sentence for the instant defense. U.S.S.G. § 5G1.3(d), App. Note 4(A).
We normally review the decision to impose a concurrent or consecutive sentence for
abuse of discretion. United States v. Watford, 468 F.3d 891, 915 (6th Cir. 2006) (citing United
States v. Campbell, 309 F.3d 928, 930 (6th Cir. 2002)). However, at sentencing, defense counsel
erroneously advised the district court that it lacked discretion to run these two sentences
concurrently, and did not alter this position when answering the Bostic question. See Bostic, 371
F.3d at 872–73. We thus review the decision’s procedural adequacy for plain error, rather than
reasonableness. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
A plain error is an error that was obvious or clear; that affected the defendant’s
substantial rights; and that affected the fairness, integrity, or public reputation of the judicial
proceeding. Wallace v. United States, 597 F.3d 794, 802 (6th Cir. 2010) (citing id.).
After noting Gonzalez-Pasos’s history of illegal entry into the United States, the district
court stated: “[t]he court considers the fact that the defendant has the—the sentence that’s been

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imposed for his illegal reentry, his most recent illegal entry; and he will have to serve that period
of incarceration which will be consecutive to the period of incarceration that this court will
impose.” Sentencing Tr., R. 229, at 62. The court went on to explain why a 240-month sentence
would be insufficient. This explanation may not have been ideal for purposes of appellate
review, but it is not plain that the court failed to consider the relevant factors when it imposed a
consecutive sentence.
III
For the reasons set forth above, we AFFIRM the judgment of the district court.

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