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United States v. Gonzales

March 16, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARK E. GONZALES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Wyoming (D.C. No. 06-CR-126-CAB).

The opinion of the court was delivered by: Ebel, Circuit Judge.

PUBLISH

Before McCONNELL, SEYMOUR and EBEL, Circuit Judges.

Defendant-Appellant Mark E. Gonzales pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Mr. Gonzales' presentence report ("PSR") recommended that he be sentenced to a minimum of 15 years' imprisonment on the ground that he came within the enhancement provisions of 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). This recommendation was based on the PSR's conclusion that Mr. Gonzales had three prior convictions for "violent felonies": (1) burglary, (2) attempted voluntary manslaughter, and (3) battery/domestic violence.

Mr. Gonzales challenged the PSR's recommendation, asserting that his prior burglary conviction was not a "burglary" for purposes of § 924(e). The district court rejected Mr. Gonzales' argument and sentenced him to 15 years' imprisonment. Mr. Gonzales now appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

On its own motion, this court raised the question whether Mr. Gonzales' battery/domestic violence conviction qualified as a violent felony. After considering the parties' supplemental briefs, however, we conclude Mr. Gonzales is not entitled to relief from his sentence on that basis, either.*fn1

I. BACKGROUND

The events that gave rise to this case occurred on March 23, 2005. It was on this day that Mr. Gonzales was riding in his girlfriend's van with his girlfriend and her daughter. During the ride, Mr. Gonzales became upset, removed a .25 caliber pistol from the van's glove compartment, and threatened suicide. Law enforcement officials were called, and upon their arrival, Mr. Gonzales was eventually apprehended. Thereafter, Mr. Gonzales admitted that he was a convicted felon, and further admitted that he had possessed the gun.

Based on these events, Mr. Gonzales was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Gonzales pled guilty to the charge. In exchange for his guilty plea, the government agreed to recommend that Mr. Gonzales' criminal offense level be reduced by a total of three levels for acceptance of responsibility. The plea agreement advised that Mr. Gonzales faced 10 years' imprisonment.

Following Mr. Gonzales' guilty plea, the probation office prepared a PSR. Pursuant to U.S.S.G. § 4B1.4(b)(3)(B),*fn2 the PSR recommended that Mr. Gonzales' adjusted criminal offense level be set at 30 (including the three level reduction for acceptance of responsibility), because according to the PSR, Mr. Gonzales' criminal history brought him within the ambit of 18 U.S.C. § 924(e).*fn3

This conclusion was based on the determination that Mr. Gonzales had three prior convictions for "violent felonies": (1) burglary, (2) attempted voluntary manslaughter, and (3) battery/domestic violence.

Mr. Gonzales objected to his burglary conviction being classified as a "burglary" for purposes of § 924(e). In making this objection, Mr. Gonzales offered the information and plea colloquy relating to this conviction. These documents shed more light on the circumstances surrounding Mr. Gonzales' burglary offense.

The information provides in relevant part that Mark E. Gonzales ... did unlawfully and feloniously, without authority, enter or remain in a building, occupied structure or vehicle, or separately secured portion thereof, with intent to commit larceny or a felony therein, to wit: did unlawfully and feloniously, without authority from the Cheyenne Airport Restaurant and Cloud Nine Bar, the owner or occupant, enter a building located at Laramie County, Wyoming, with intent to commit larceny or a felony therein, and did steal food and beer items, contrary to W.S. 6-3-301(a), 1977 Republished Edition. (Vol. 2 at Doc. 17, Ex. B.)

The plea colloquy offers Mr. Gonzales' recollection of the events:

Q: In your own words, would you tell the Court what happened? ....

Gonzales: Douglas was the one that had the whole plan planned out because he had said there was a key in there that he ...


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