United States v. Gregory Terronez
Opinion
Gregory Terronez pleaded guilty to unlawful possession of a firearm by a felon. The district court announced a within-Guidelines sentence of 110 months' imprisonment. On appeal, Terronez argues the court committed procedural error by not considering his request for a variance from the Guidelines range given that the base offense level overrepresented the seriousness of his offense. For the reasons below, we affirm.
I. Background
On November 29, 2017, while police were on vehicle patrol in Rock Island, Illinois, they maneuvered behind a white Chevrolet Impala and observed the car accelerate and come to an abrupt stop. Then, police saw Terronez exit the car and run through a residential neighborhood. After a foot chase, Terronez surrendered to the police. He told the officers he ran because he believed he had an outstanding arrest warrant. The police recovered a firearm, and Terronez confessed to police that he threw the gun while running. A one-count indictment charged Terronez with unlawful possession of a firearm as a felon in violation of
The United States Probation Office filed a Presentence Investigation Report ("PSR") that calculated Terronez's Sentencing Guidelines range. Since Terronez had two Illinois drug trafficking convictions, each of which subjected him to over a year in prison, his violation of § 922(g) was "subsequent to sustaining at least two felony convictions of ... a controlled substance offense," and as a result, his base offense level was 24. U.S.S.G. § 2K2.1(a)(2) ;
see
Terronez's criminal history category was VI because he received criminal history points for the two prior drug trafficking convictions, as well as two drug possession *392 convictions, an aggravated assault conviction, and two driving on a suspended license convictions. Combining a total offense level of 25 and a criminal history category of VI, while accounting for § 922(g) 's ten-year statutory maximum, the Guidelines recommended a 110- to 120-month term of imprisonment. Terronez did not object to the PSR's Guidelines calculation, but he filed a sentencing memorandum seeking a below-Guidelines sentence.
On September 26, 2018, the court held a sentencing hearing. The government asked for a within-Guidelines sentence, noting Terronez resumed selling drugs upon release from prison in May 2017 and had a lengthy criminal history, a history of substance abuse, and self-reported anger issues. It also highlighted the inherent danger posed by a drug dealer possessing a firearm. Terronez requested an 84-month sentence. As relevant here, he argued that "all prior controlled substance offenses are not equal even though they are treated equally by the sentencing guidelines." He emphasized he had no "record of violence or a record of using firearms," and his prior drug offenses were "medium-level" and "did not concern any use of a weapon or any violence." Therefore, he asserted "his history and characteristics show that ... [he] is not a threat with a weapon that perhaps a typical ... person with two prior controlled substances offenses would be."
The court adopted the PSR Guidelines calculation and indicated it would base its sentence on the Guidelines recommendation, the parties' sentencing memoranda, the parties' arguments at the hearing, and the
I recognize that you have a limited history of violence ... and I'm not even considering whether you do or not, to tell you the truth. And I realize that you said to me that you're not a violent person, and I don't have any reason to doubt that except there is really only one reason to possess that firearm in the trade of either small drug dealing or large drug dealing. And that is at some point you're going to use it, whether you believe you're protecting yourself or whether you are embroiled in some kind of dispute.
Terronez interrupted, stating "I would never use that firearm." The court responded:
There is just no basis for possessing it if you weren't going to use it. You are prohibited from using it for starters. And from my review of your history, that's the reasonable inference to be drawn.... I appreciate the request of 84 months by [defense counsel], and I don't consider that to be a request that is out of line ... and that may be justified in some gun cases but all gun cases aren't the same.
Then, the court issued the sentence:
I think under the circumstances, when all 3553 characteristics are evaluated: the nature and circumstances of the offense; the history and characteristics of you; the need for the sentence to reflect the seriousness of the offense; promote respect for the law; provide just punishment; afford adequate deterrence to criminal conduct, which applies in your case; and to protect the public from further crimes, which also apply in your *393 case; all of them apply to your case; as well as providing you with educational and vocational training as recommended, I believe a sentence of 110 months to the Bureau of Prisons is the appropriate sentence. So it will be a sentence of 110 months.
At the conclusion of the hearing, the court asked defense counsel if it "addressed any and all objections, factors, or otherwise arguments that you believe should have been made on Mr. Terronez's behalf." Defense counsel said that it "didn't hear the Court address the arguments for a variance from the guideline range that were in the sentencing memo," including "that the base-offense level overstated the seriousness of the offense because Mr. Terronez's prior convictions were not violent." In response, the court stated, "Well, I believe that I did address them but maybe not specifically. I did factor them in with your arguments and appreciated your arguments and said that in some circumstances maybe even a variance to 84 months might be appropriate but not in this case." 1 This appeal followed.
II. Discussion
A sentencing court must address a defendant's nonfrivolous mitigation arguments.
Rita v. United States
,
Often, the defendant's mitigation argument "takes the form of a challenge to the Guidelines themselves."
United States v. Rosales
,
*394
Rita
,
There is no dispute that the PSR properly calculated Terronez's Guidelines range and more specifically, properly applied § 2K2.1(a)(2) to determine Terronez's base offense level of 24. Terronez committed the instant firearm offense after sustaining two prior "controlled substance offense" convictions; as noted above, he has two felony drug trafficking convictions in Illinois, each of which subjected him to a term of imprisonment greater than one year. Terronez sought a downward variance, however, arguing that § 2K2.1(a)(2) 's increased base offense level resulted in a greater-than-necessary sentencing range. He emphasized that his predicate felony controlled substance offenses involved only moderate amounts of cocaine and did not include any violence, threats of violence, or the presence of firearms. Additionally, he stressed he had never been charged with using or possessing a firearm. He therefore claimed he did not present a threat with a weapon. In other words, Terronez maintained § 2K2.1(a)(2) and the resulting Guidelines range did not treat his personal characteristics and history fairly, did not reflect the § 3553(a) factors, and did not result in a sound judgment.
Terronez's theory relied almost entirely on the court's reasoning in
United States v. Fogle
,
On appeal, Terronez insists the court failed to adequately respond to his concern. He claims that while the "district court considered the general threat associated with possessing a firearm and distributing drugs, ... the court did not consider whether the Guidelines' sentencing range resulted in a sentence greater than necessary given Terronez's history and characteristics." Rather, according to Terronez, the court only considered "factors that are present for any defendant who is convicted of possessing a firearm subsequent to sustaining a conviction for a controlled substance offense." We disagree.
The court adequately performed the required "individualized" inquiry,
see
United States v. Miranda
,
While the court could have engaged with Terronez's precise argument in more detail-the court did not reference
Fogle
or consider the Sentencing Commission's motivation for creating § 2K2.1(a) -a district court need not "delve into the history of a guideline so that [it] can satisfy [it]self that the process that produced it was adequate to produce a good guideline."
United States v. Moreno-Padilla
,
In sum, especially given that the court imposed a within-Guidelines sentence, its explanation as to why it did not believe the sentence overstated the seriousness of Terronez's felon-in-possession conviction is sufficient.
See
Kappes
,
III. Conclusion
For the foregoing reasons, we AFFIRM .
The district court also explained why it did not find persuasive Terronez's arguments that he should receive a below-Guidelines sentence because he did not know the serial number was obliterated and the Guidelines double counted his prior felony convictions. Terronez does not appeal the court's rejection of those arguments.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Gregory M. TERRONEZ, Defendant-Appellant.
- Cited By
- 7 cases
- Status
- Published