United States v. Gonzalez
United States v. Gonzalez
Opinion of the Court
MEMORANDUM
These consolidated appeals arise from the prosecution of Katherine Paiz Gonzalez (“Paiz”) and her husband Luis Gonzalez (“Gonzalez”) for insurance fraud, conspiracy to commit insurance fraud, and arson. Paiz appeals her conviction on the arson count. Gonzalez appeals the denial of his motion to suppress his confession and the district court’s calculation of his sentence under the Guidelines, which the Government also challenges on cross-appeal. We affirm both convictions, but reverse Gonzalez’s sentence and remand for resentenc-ing.
Paiz’s central claim is that her conviction for arson should be reversed because the doctrine of vicarious conspiracy liability set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), does not apply to the federal arson statute, which makes it a crime to “use[] fire or an explosive to commit any felony which may be prosecuted in a court of the United States.” 18 U.S.C. § 844(h)(1). She argues that Pinkerton does not apply because the word “uses” in the phrase “uses fire,” id., requires “actual knowledge” on the part of the person using fire that he was doing so. This is true with respect to the “use” element when prosecuted under a theory of direct liability. However, as this court made clear in United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997) (per curiam), the fact that actual knowledge is required for someone to “use” fire, or in that case to use a firearm, does not foreclose the government from prosecuting a co-conspirator of the person who actually used fire under Pinkerton’s, theory of vicarious conspiracy liability.
To establish Pinkerton liability, the prosecution must demonstrate “(1) the substantive offense was committed in furtherance of the conspiracy; (2) the offense fell within the scope of the unlawful project; and (3) the offense could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.”
Id. at 908 (emphasis added) (quoting United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir. 1986)). Here, the Government introduced sufficient evidence to satisfy each of the elements set forth above, including sufficient evidence that the use of fire by Paiz’s co-conspirator was reasonably foreseeable.
Gonzalez also raises multiple challenges to the procedural validity of his sentence. Procedural error occurs if “a district court ... fail[s] to calculate — or ... calculate^] incorrectly — the Guidelines range [or] ... choose[s] a sentence based on clearly erroneous facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). “[A] procedurally erroneous ... sentence will be set aside.” Id. We conclude that the district court committed procedural error by incorrectly applying two separate enhancements under the Guidelines.
Finally, turning to the Government’s cross-appeal respecting the scope of the term “conceal” in U.S.S.G. § 2K1.4(b)(l), we affirm the district court’s decision not to apply that enhancement here for the reasons stated by the district court.
We AFFIRM the judgments of conviction, REVERSE Gonzalez’s sentence, and REMAND for resentencing.
This disposition is not appropriate * for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Paiz also argues in two sentences of her opening brief that she was denied a public trial because the district court excluded her recently convicted co-defendant husband and infant child from the courtroom during her trial. This contention has no merit. Gonzalez was a potential witness in Paiz’s case and was therefore properly excludable under Fed. R.Evid. 615. The exclusion of the infant was not a violation of the public-trial right either. See, e.g., United States v. Sherlock, 962 F.2d
. Having concluded that no Miranda violation occurred, we do not believe it was clearly erroneous for the district court to conclude, based on Gonzalez's confession, that Gonzalez personally committed the arson at issue. As Gonzalez acknowledges, we are bound by circuit precedent to hold that a district court may rely on acquitted conduct to enhance a sentence. United States v. Mercado, 474 F.3d 654, 657-58 (9th Cir. 2007). The application of the arson cross reference, U.S.S.G. § 2B 1.1 (c)(2), was therefore proper.
. The district court held "that the wife and the husband were both managers and the third person was their helper.” Thus, the enhancement cannot be affirmed on the alternative theoty that Gonzalez "exercised some control over” Paiz.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.