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United States v. Gonzalez

March 27, 2007

UNITED STATES OF AMERICA
v.
DAVID GONZALEZ, DEFENDANT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Indicted for conspiracy to distribute four kilograms or more of cocaine, defendant David Gonzalez entered a plea of guilty before United States Magistrate Judge Gabriel W. Gorenstein on August 22, 2006, pursuant to a written plea agreement. The plea was duly accepted by this Court on August 31, 2006. On January 18, 2007, Gonzalez moved to rescind the plea agreement, without withdrawing his guilty plea, claiming that he never fully understood the agreement. Following an evidentiary hearing on the motion on January 26, January 31, and February 1, 2007, the motion will be denied.

I. Factual Background

The following facts were developed in a prior evidentiary hearing on Gonzalez's motion to suppress evidence, except where otherwise noted. On January 10, 2006, a truck delivered some 200 kilograms of cocaine from Texas to Gonzalez's storage units at a storage facility in Pennsylvania; another truck from New York arrived later to retrieve the drugs. Law enforcement agents who had surveilled Gonzalez's storage operation frustrated the transaction, seized the drugs, and arrested Gonzalez and the drivers of the trucks. (7/7/07 Tr. at 3-4.) In a subsequent search of Gonzalez's home, agents recovered a number of firearms (7/7/07 Tr. at 14-15) - according to the presentence report prepared in this case, there were more than 30 firearms altogether, including machine guns and a grenade launcher. (Presentence Report at 3.)

II. The Indictment

Gonzalez was charged in a two-count indictment with conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of firearms in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). These charges carry serious sentencing consequences. The statutory penalties for the drug conspiracy charge include imprisonment for any term of years up to and including life imprisonment, and a mandatory minimum term of ten years, see 21 U.S.C. § 841(b)(1)(A), and the firearms charge requires at the minimum a mandatory five-year prison term, 18 U.S.C. § 924(c)(1)(A), which the law requires to be made consecutive to any sentence imposed on the narcotics count. 18 U.S.C. § 924(c)(1)(D)(ii). Thus, if convicted on both counts, Gonzalez faced a prison term of at least 15 years, and at most imprisonment for life. Moreover, because of the huge quantity of cocaine the distribution of which was the object of the charged conspiracy, if Gonzalez were convicted of both counts after trial, the United States Sentencing Guidelines would result in a recommended sentence of 235 to 293 months of imprisonment for the narcotics conspiracy, see U.S.S.G. § 2D1.1(c)(1), to be followed by the statutorily required consecutive sentence of 60 months on the gun charge, for a total Guidelines recommendation of 295 to 353 months - in plain English, a minimum recommended sentence of nearly 25 years.

III. The Plea Agreement

Although Gonzalez admits to conspiring to distribute the 200 kilograms of cocaine, he contends that his gun collection was just that - a collector's hobby - and was unrelated to the narcotics conspiracy. In order to permit him to accept responsibility for the narcotics crime but contest the relevance of the firearms, his retained attorney, B. Alan Seidler, negotiated a somewhat complex plea agreement.

Under the agreement, Gonzalez was permitted to plead guilty to the narcotics conspiracy in return for dismissal of the firearms count. (Letter from Assistant United States Attorney Elie Honig to Alan Seidler, Esq., dated Aug. 11, 2006 (the "Plea Agreement").) The parties stipulated that the conspiracy concerned in excess of 150 kilograms of cocaine (resulting in a base offense level of 38, see U.S.S.G. § 2D1.1(c)(1)), and that Gonzalez would receive credit for timely acceptance of responsibility (which would reduce his offense level by three, to level 35, see U.S.S.G. § 3E1.1(b)).

However, the parties agreed to disagree about whether the possession of the firearms was in furtherance of the conspiracy, and should therefore be treated as relevant conduct. See U.S.S.G. § 1B1.3 (defining relevant conduct). If the Court accepted the Government's contention that it was, the resulting two-level enhancement, see U.S.S.G. § 2D1.1(b)(1) (increasing offense level where a narcotics offender possesses "a dangerous weapon (including a firearm)" in furtherance of the conspiracy), would lead to a total offense level of 37 and a recommended sentence between 210 and 262 months. If the Court rejected the Government's view, in contrast, the total offense level would be at most 35, with a recommended sentencing range of 168 to 210 months. Moreover, rejection of the firearms enhancement would have an additional beneficial consequence for Gonzalez. Possession of a firearm "in connection with the [drug] offense" would disqualify Gonzalez from eligibility for the statutory "safety valve" provided by 18 U.S.C. § 3553(f), thus cementing applicability of the mandatory ten-year minimum sentence for the drug conspiracy. But if Gonzalez did not possess a firearm in connection with the narcotics conspiracy, as the plea agreement expressly recognized, Gonzalez would be free to argue that he met the requirements for the statutory safety valve and the corresponding two-level reduction in the Guidelines calculation. (Plea Agreement at 2-3 & nn.1&2.) See U.S.S.G. §§ 2D1.1(b)(9), 5C1.2(a). If he did so qualify - and the parties did not stipulate as to whether he met all the other criteria, so this matter was open to contest in sentencing proceedings -- his total offense level would further drop to 33, resulting in a recommended sentencing range of 135 to 168 months. In addition, the mandatory ten-year minimum would not apply.*fn1

Finally, the plea agreement renounced the parties' rights to argue for any other Guidelines adjustments or departures, or for a non-Guidelines sentence. The limited present record does not disclose any plausible potential Government arguments for a sentence above the recommended guidelines range that would be foreclosed by this provision. Gonzalez asserts, however, that if released from his bargain, he would argue for a minor role adjustment, as well as for potential departures (or, presumably, a non-Guidelines sentence authorized by Booker), based on certain health problems and evidence suggesting he may have been under some coercion or pressure to participate in the offense. Although at this stage of the case the Court cannot assess how plausible these arguments would be, if successful they could have a significant impact on Gonzalez's sentence. If Gonzalez were found to be, as he contends, a minor participant in the offense, the Guidelines would provide both for a reduction in his base offense level by four levels, and for a further two-point role reduction. See U.S.S.G. §§ 2D1.1(a)(3), 3B1.2(b). Thus, if Gonzalez were to prevail on all potentially contested guidelines issues (the firearms issue, the safety valve, and the minor participant issue), the ultimate offense level would be 27, carrying a recommended range of 70 to 87 months, with the potential for further departures. By eschewing these additional arguments, the plea agreement gave up potential benefits to Gonzalez - although the practical cost of these concessions of course depends entirely on the extent to which any of the foregone arguments were likely to succeed.

Given his conceded (and presumably indisputable) guilt of narcotics conspiracy, Gonzalez thus faced two principal alternatives. His first choice was to accept the proposed plea agreement. By doing so, Gonzalez would give up sentencing arguments he might have otherwise made (arguments whose chances of success might, of course, have been slight). He would face a likely guideline recommendation of somewhere between 135 months (the bottom of the applicable range if he prevailed on the firearms and safety valve issues that the agreement permitted him to contest) and 262 months (the top of the range that would apply if he lost on all those issues) - or more realistically 210 months (the bottom of that range). However, doing so would lock in certain benefits, which can best be appreciated by considering the risks of the alternative course of action.

Gonzalez's second alternative was to reject the plea agreement. Under this strategy, he could still plead guilty to the conspiracy charge. He would still face trial on the firearms count, however, and if convicted he would risk losing any credit for acceptance of responsibility, as well as facing the more drastic consequences of conviction of the separate firearms crime instead of the guideline firearm adjustment.*fn2 That is, the worst-case scenario under this alternative was the 353-month top of the guideline range (or, more realistically, the 295-month bottom of that range). This alternative, however, also opened up other possibilities potentially less disastrous for Gonzalez. Perhaps the Government would choose to avoid the trouble of a jury trial on the firearms charge, and simply present its facts at a sentencing hearing. Or perhaps, given the more demanding burden of proof at a jury trial, Gonzalez could secure an acquittal on the firearms count of the indictment. In this case, however, he might still face the risk that the firearms would be found relevant at sentencing, either as relevant conduct if the Court found them to be so under the less demanding burden of proof at a sentencing hearing, or - even if they were not possessed in furtherance of the conspiracy - if the Court concluded that the possession of such weapons (at least some of which apparently were not lawfully possessed) indicated a need to protect the community warranting a sentence high in the otherwise-applicable guideline sentencing range.

In short, the decision whether to accept the plea agreement involved a bewildering array of possible scenarios and consequences. One way or another, Gonzalez would face severe sentencing consequences for his admitted guilt of narcotics conspiracy, and would face a determination by either a judge or jury regarding the relationship of his arsenal of weapons to that conspiracy. But whether the agreement's benefits in limiting the consequences of the worst-case scenarios outweighed its costs in giving up arguments that in theory could ...


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