United States v. Gonzales
U.S. Court of Appeals for the Fifth Circuit
United States v. Gonzales
Opinion
Case: 22-51077 Document: 00517062929 Page: 1 Date Filed: 02/12/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-51077
February 12, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Christopher Gonzales,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CR-646-1
______________________________
Before King, Jones, and Oldham, Circuit Judges.
Per Curiam:*
After pleading guilty without a plea agreement to possession of a
firearm in furtherance of a drug trafficking crime and possession of a firearm
by a felon , Defendant Christopher Gonzales was sentenced to a consecutive
total of 151 months of imprisonment. On appeal, Gonzales argues that the
district court procedurally and substantively erred regarding Gonzales’s
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
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No. 22-51077
sentence and raises for the first time constitutional arguments against his
conviction under 18 U.S.C. § 922(g)(1). Although we reject Gonzales’s
constitutional arguments because they are subject to plain error review, we
hold that the district court plainly erred by failing to clarify whether the time
Gonzales served before sentencing qualified toward his federal sentence. As
such, we REMAND to the district court to clarify Gonzales’s sentence.
I. Background
Christopher Gonzales pleaded guilty without a plea agreement to
possession of a firearm in furtherance of a drug trafficking crime (count two)
and possession of a firearm by a felon (count three), all in connection to a
search warrant that was executed on Gonzales’s residence in May 2019.
Under the advisory sentencing guidelines in the presentence report (PSR),
Gonzales’s guideline range for count three was 57 to 71 months, which he was
to serve consecutively with the five-year statutory minimum sentence for
count two. See 18 U.S.C. § 924(c)(1)(D)(ii). The PSR also noted that
Gonzales had pending charges in San Antonio, Texas, in Bexar County for
aggravated robbery and evading arrest, all stemming from an incident in late
April 2019. These offenses were considered relevant conduct for the purpose
of evaluating Gonzales’s sentencing recommendation, and Gonzales was
charged in count one of the federal indictment based on the April 2019
incident. Gonzales apparently also had pending drugs and firearms charges
in Medina County for the facts surrounding the May 2019 offenses he was
federally convicted for.
Before sentencing, the Government filed a memorandum requesting
an upward departure based on Gonzales’s conduct of pointing firearms at
people and firing numerous shots in a populated area. The district court
ultimately imposed an upward variance based on Gonzales’s “extreme
conduct” and sentenced him to 60 months of imprisonment on count two
2
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and 91 months of imprisonment on count three, to be served consecutively,
for a total of 151 months of imprisonment; five years of supervised release for
count two and three years of supervised release for count three, to be served
concurrently; and a $200 special assessment. Defense counsel objected to
the upward variance.
After the court announced the sentence, Gonzales’s counsel noted
Gonzales was in court based on a writ from Medina County. Gonzales’s
counsel then asked if the district court agreed that the time he spent in
custody—from his May 10, 2019, arrest through sentencing on December 8,
2022—should count toward his federal sentence. The subsequent exchange
between Gonzales’s counsel and the district court was as follows:
THE COURT: Oh yes. Most definitely. But the Bureau of Pris-
ons will make that calculation and determination. But as far as I’m
concerned, it should count. Yes.
COUNSEL: Okay, I will verify his status. I believe he’s here
on a writ. And if that’s the case, may I work with Government
Counsel and [the Probation Officer] to get the proper language
in that the Bureau of Prisons needs?
THE COURT: Right. And so that if you can get it to the point
that that time counts, that will be okay by me.
The next day, the district court signed the judgment, which states that “[i]t
is further the Court’s intention that the defendant receive credit pursuant to
U.S.S.G. [§] 5G1.3(d) on the Medina County Sheriff’s Office arrest for this
offense beginning on May 10, 2019.”
This court granted Gonzales’s unopposed motion to supplement the
record on appeal with state records showing that Gonzales was indicted and
convicted for the aggravated robbery and sentenced to 14 years of imprison-
ment in Bexar County, Texas, relating to the offense that occurred in April
2019. The state judgment states, “This sentence shall run concurrent with
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No. 22-51077
5:19-CR-00646-OLG-1 in the Western District of [Texas].” Gonzales is cur-
rently in the custody of the Texas Department of Criminal Justice on the ag-
gravated robbery conviction and his projected release date is May 2, 2033.1
II. Standard of Review
Gonzales’s arguments regarding the district court’s procedural er-
rors2 and his constitutional objections are subject to plain error review be-
cause he did not raise them in the district court. See United States v. Peterson,
977 F.3d 381, 392(5th Cir. 2020); United States v. Howard,766 F.3d 414, 419
(5th Cir. 2014). To demonstrate plain error, Gonzales must show that (1) there is an error; (2) the error is clear or obvious; and (3) the error affected his substantial rights. Puckett v. United States,556 U.S. 129, 135
(2009). If he makes this showing, this court has the discretion to correct the error but will do so only if the error “seriously affects the fairness, integrity or public rep- utation of judicial proceedings.”Id.
(internal quotation marks and citation omitted). An error is not clear or obvious where an issue is subject to reason- able dispute, or where there is an absence of controlling authority. United States v. Rodriguez-Parra,581 F.3d 227
, 230–31 (5th Cir. 2009).
III. Analysis
Gonzales argues that the district court plainly erred in failing to apply
§ 5G1.3(c) of the Sentencing Guidelines, which requires the district court to
order a sentence to be served concurrently with an anticipated sentence im-
posed for relevant conduct. U.S.S.G. § 5G1.3(c). We disagree.
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1
See Inmate Information Details, TEX. DEP’T OF CRIM. JUST (last visited Jan. 29,
2024), https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=08477106.
2
Because we hold that the district court procedurally erred in imposing Gonzales’s
sentence, we do not reach the issue of whether it substantively erred.
4
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No. 22-51077
If “a state term of imprisonment is anticipated to result from another
offense that is relevant conduct to the instant offense of conviction,” the sen-
tence on the instant offense “shall” be imposed to be served concurrently to
the anticipated state term of imprisonment. § 5G1.3(c). As the Sentencing
Guidelines make clear, concurrent sentencing is typically appropriate where
a state sentence is “based on conduct ‘relevant’ to the federal offense.”
United States v. Ochoa, 977 F.3d 354, 356(5th Cir. 2020); see also U.S.S.G. § 5G1.3(c). Nevertheless, federal courts generally have discretion to order sentences to run concurrently with or consecutively to state sentences that have not yet been imposed, subject to consideration of the Sentencing Guide- lines and other sentencing factors. See Setser v. United States,566 U.S. 231, 236, 240
(2012).
In United States v. Johnson, 760 F. App’x 261, 266 (5th Cir. 2019), this court determined that “[t]he question whether a district court ‘anticipates’ a state sentence when state charges are not yet filed is one of first impression in this circuit.” Johnson then held, consistent with our precedent, that when an issue of first impression is involved, any error is not clear or obvious.Id.
Gonzales has not located a subsequent case in which this court has specifi- cally addressed the meaning of the term ‘anticipated.’ Because the issue whether the state sentence was anticipated at the time of his federal sentenc- ing is subject to reasonable dispute, Gonzales cannot show that the district court made an error that was clear or obvious. See Puckett,556 U.S. at 135
;
see also Rodriguez-Parra, 581 F.3d at 230–31.
Nonetheless, the district court did plainly err in imposing a sentence
that does not clearly effectuate its intent because there appears to be an am-
biguity between the district court’s oral statements at the sentencing hearing
and the written judgment. At the sentencing hearing, the district court ap-
peared to agree with Gonzales’s counsel that Gonzales should get credit for
the time he had already spent in custody and agreed to allow defense counsel
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No. 22-51077
to work with the Government to get the proper language in the judgment for
the BOP. The district court also stated that the Bureau of Prisons would
make that determination. This court, however, has already held that district
courts lack “the authority to award or deny credit” and cannot bind the Bu-
reau of Prisons to make decisions regarding time-served credits. In re U.S.
Bureau of Prisons, Dep’t of Just., 918 F.3d 431, 439 (5th Cir. 2019).
The written judgment expressly states that it is the court’s intention
“that the defendant receive credit pursuant to U.S.S.G. [§] 5G1.3(d) on the
Medina County Sheriff’s Office arrest for this offense beginning on May 10,
2019.” While Section 5G1.3(d) allows for a sentence to be imposed concur-
rently, partially concurrently, or consecutively to a prior undischarged term
of imprisonment, the written judgment does not clarify how § 5G1.3(d)
should be applied. Additionally, the record does not contain evidence that
Gonzales was serving an undischarged term of imprisonment on the Medina
County charges; thus, it is unclear what effect, if any, the language in the
written judgment would have on Gonzales’s sentence. These ambiguities
create an obvious error that affects Gonzales’s substantial rights, as they af-
fect whether he must serve 43 months in prison. See United States v. Jones,
811 F. App’x 872, 874–75 (5th Cir. 2020); United States v. Benavides-Hernan- dez,548 F. App’x 278, 280
(5th Cir. 2013).
Gonzales’s Second Amendment argument is based on New York State
Rifle & Pistol Association v. Bruen, 597 U.S. 1(2022). Our court has already held that such a plain error challenge to § 922(g)(1) is unavailing because, given the current state of the caselaw, it is not clear or obvious that § 922(g)(1) is unconstitutional. See United States v. Jones,88 F.4th 571
, 573–
74 (5th Cir. 2023). We are bound by this circuit precedent, and we apply it
here.
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Gonzales also raises a Commerce Clause challenge to § 922(g)(1),
arguing that it is unconstitutional because it exceeds Congress’s authority
under the Commerce Clause. This circuit has consistently upheld the
constitutionality of § 922(g)(1) under the Commerce Clause and has
described the statute as “a valid exercise of Congress’s authority under the
Commerce Clause.” United States v. Alcantar, 733 F.3d 143, 145 (5th Cir.
2013).
***
We AFFIRM Gonzales’s conviction on the § 922(g)(1) charges, but
REMAND to the district court to clarify its intent with regards to
Gonzales’s sentence.
7
Reference
- Status
- Unpublished