Free Judgment for Revocation - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00435-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 FREDDY GILBERT GONZALES, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S TRANSCRIPT (Sentencing Hearing: Order) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, occurring at 8:31 a.m., on the 12th day of December,

2005, in Courtroom A901, United States Courthouse, Denver, Colorado. APPEARANCES JAIME PENA, Assistant U.S. Attorney, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. CHARLES ELLIOTT, Attorney at Law, 370 17th Street, Suite 5380, Denver, Colorado, 80202, appearing for the defendant. Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 901 19th Street, Room A259, Denver, Colorado, 80294, (303) 629-9285

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(The following proceedings were had and entered of record after the Court heard the arguments of counsel and statement of defendant:) THE COURT: will impose here. Then I'll announce the sentence that I

You'll have an opportunity to argue before

judgment is entered. As we all know, in January of this year, the sentencing landscape changed dramatically with the issuance of the Booker and Fanfan decisions by the United States Supreme Court. In those decisions, the United States Supreme Court

determined that the Federal Sentencing Guidelines are no longer mandatory; they are only advisory. Therefore, the Court

considers those Sentencing Guidelines in conjunction with the other provisions of 18 U.S.C. Section 3553(a). That section

obligates this court to impose a sentence that is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment, to adequately deter criminal conduct, to protect the public from further crimes by this defendant, and to provide this defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. In order to fashion that kind of sentence, the Court considers a number of factors: the nature and circumstances of the offense, the history and characteristics of the defendant,

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the kinds of sentences that are available, what the Sentencing Guidelines would require, the need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct, and in the appropriate case, the need for restitution. The presentence report provides valuable information with regard to these factors. Here, the parties have no

objection to the factual contents of the presentence report; and, therefore, the Court bases its ruling on those facts. Then the Court turns to the calculation under the Federal Sentencing Guidelines. The defendant has raised two

objections to the calculations, and I'll deal with those in conjunction with the motion for downward departure. The parties do not disagree as to the offense calculation. The objections are limited solely to the criminal

history category. The base offense level here for violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(B) is sentencing guideline Section 2D1.1. Because of the type and the amount of drugs involved in

this offense and the fact that it was one kilogram of cocaine, the base offense level is 26 in accordance with Section 2D1.1(c)(7). There are two additional points added as specific

offense characteristics because the defendant possessed a weapon during the commission of the offense, and the offense level is reduced by three levels because the Government agrees

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that Sentencing Guidelines Sections 3E1.1(a) and (b) have been satisfied. Thus, the total offense level is 25.

The defendant has argued that the criminal history category of V, as calculated in the presentence investigation report, is too high. regard to that. The defense makes several arguments with

The first is that the misdemeanor

calculations -- misdemeanor calculation with a fine of $100 at paragraph 57 is inappropriate, and secondly that the offenses at paragraphs 51 and 53 ought to be grouped, and ultimately the defense argues that the criminal history category of V overrepresents the defendant's criminal history or the likelihood that he will commit other crimes. Now, ordinarily I would proceed item by item through these objections; but there is no point in doing so. And the

reason there is no point in doing so is because the Government is in agreement with the defense that the criminal history category here of V overstates substantially the seriousness of the defendant's criminal history or the likelihood that he will commit other crimes. The parties are in agreement that Criminal History Category No. III is more appropriate given the nature of this defendant's criminal history and the likely -- and a projected likelihood that he will commit other crimes. Frankly, in the absence of this stipulation, I would not agree. The criminal history of Mr. Gonzales is

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substantial.

He's 23 years old.

He's had four convictions as At age 18,

a juvenile, three of which involve drugs or guns.

he was convicted of a weapons offense, at age 19 menacing and a weapons charge. And there are pending charges from age 20, 21

and -- age 20 and 21 involving marijuana, escape, criminal mischief, assault, menacing, and threats to a complaining witness. This federal charge represents the culmination of an accelerating criminal history. Every single offense here gets

more serious, more substantial; and the offense to which he has pled guilty in this court involved both drugs and a weapon. This court has grave concerns about Mr. Gonzales' ability to reform himself. When I listen to his comments, I heard a great desire to turn his life around but very little idea how to do that and very little commitment to the changes that he has to make to turn his life around. It is not about who you associate with. about your friends. about your family. of your own ship. It is not It is not

It is not about what they do. It is about you, sir.

You are the captain

You are the one who makes decisions as to You are the person who is accountable

what you're going to do. for those decisions.

There isn't a person here in this courtroom who hasn't made mistakes. Every single one of us has. The question is

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(1) did we learn from them and (2) did we ever repeat them? You have a history of repeating the same mistakes over and over again. And when you said what you learned about this, You are right.

you said that your family suffered from this. Your family does suffer from this. this.

Your children suffer from

And the way you make it up to them is you demonstrate A father doesn't break the law, because he A father doesn't break his --

how a father acts.

doesn't want his sons to do so.

break the law, because he wants to support his family and take care of his family. You are going to have to make the choices

not to break the law, not to use drugs, and not to use weapons, particularly when you're angry. Now, I can't help you with that. have to make. That's a choice you

But given this criminal history and given the

stipulation between the parties that it is Criminal History Category III that applies, I have no choice but to sentence you to the highest calculation under Criminal History III, 87 months. And I do that with the fervent belief that as your

attorney says, you have the capability of turning your life around. You may even want to turn your life around but with

the hope that you will really combine those two things and turn your life around. I intend to sentence you to 87 months of imprisonment. And let me ask our probation officer what's the criminal history category III -- what the supervised release

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range is. THE PROBATION OFFICER: the same, four to five years. THE COURT: All right. Followed by five years on Judge, I believe it remains

supervised release subject to the standard conditions: drug testing, collection of DNA; and special conditions: participation in testing and treatment for drug and alcohol abuse and participation in mental health treatment, specifically for anger management as recommended by the probation office. I do not intend to impose a fine because I don't think you have the ability to pay a fine, but I am required to impose a special assessment of $100. Two requests have been made in conjunction with this sentence: first that the Court recommend that you be assigned to FCI Englewood and second that you be -- the recommendation be made that you participate in the RDAP program. I recommend

that you participate in the RDAP program, and I hope your desire to participate in that program continues because it will be at the end of your sentence when that occurs. I will not recommend that you be placed at Englewood FCI. I do so for two reasons. First of all, the Bureau of

Prisons takes into account where your family is located automatically, but they also assess your security risk and the availability of beds. And what is more important here than you

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having the comfort of your family close by and the frequency of visits is that you concentrate on turning your life around and that you participate in the RDAP program and any other program that will help you turn your life around. important than having frequent visits. So I leave it to the Bureau of Prisons' discretion as to where you are placed so that you can participate in the maximum number of programs that will help you reintegrate yourself into society so that we never see you in this courtroom again or in any other courtroom and so that you can be the kind of father that you want to be to your children. Any further argument? MR. PENA: No, your Honor. No, your Honor. That is more

MR. ELLIOTT: THE COURT:

Then pursuant to the Sentencing Reform Act

of 1984, it is the judgment the Court that the defendant, Freddy Gilbert Gonzales, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 87 months. Upon release from imprisonment, he'll be placed on supervised release for a term of five years. Within 72 hours of release

from the custody of the Bureau of Prisons, he will report in person to the probation office in the district to which he is released. While on supervised release, he will not commit

another federal, state or local crime, not possess a firearm as defined in 18 U.S.C. Section 921, and shall comply with the

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standard conditions that have been adopted by in court. No fine is imposed; however, the Court is required to impose the mandatory special assessment of $100. During the time of supervised release, defendant will not unlawfully possess a controlled substance, he'll refrain from any unlawful use of a controlled substance, and he'll submit to one drug test within 15 days of release on supervised release and at least two periodic tests thereafter. He'll

cooperate in the collection of DNA as directed by the probation officer. And he'll comply with the following special conditions: participation in a program of testing and treatment for drug and alcohol abuse as directed by the probation officer until such time as he is released from the program by the probation officer. He'll also abstain from the use of alcohol

or any intoxicants during the course of treatment; and to the extent he is able, he will pay for the cost of treatment. He'll also participate in a program of mental health treatment specifically for anger management as directed by the probation officer until such time as he is released from that program. He'll pay the cost of treatment for that program to the extent he is able, and the Court authorizes the probation officer to release to the treating agency all psychological reports and/or this presentence report for the continuity of treatment. The Court recommends that the defendant participate in

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the RDAP program and any other program, educational or vocational, that will assist him in successful reintegration into society once he has completed his sentence. Is there any further matter to bring before the Court? MR. PENA: No, your Honor. No, your Honor. Thank you.

MR. ELLIOTT: THE COURT:

Then this court will remand the defendant

to the care and custody of the United States Marshal pending his assignment to a Bureau of Prisons facility. recess. (Recess at 8:47 a.m.) (Reconvened at 8:49 a.m.) THE COURT: Please be seated. This is the We'll stand in

We're reconvened in Case No. 04-cr-435.

United States of America vs. Freddy Gilbert Gonzales. And I'm going to ask that Mr. Gonzales just stand right where he is, because what I failed to do when I recessed is to advise Mr. Gonzales of his right to appeal. Mr. Gonzales, you have a right to appeal the sentence that I just imposed. Your right to appeal is exercised by the Ordinarily, your attorney,

filing of a notice of appeal.

Mr. Elliott, would do that for you; and it must be done within ten days of the date of judgment being entered. But if he is

unable or unwilling to do that and you request, I will direct the Clerk of the Court to file a notice of appeal on your

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behalf. Do you have any questions about that? THE DEFENDANT: THE COURT: No, ma'am. We'll stand in recess.

Thank you, then. Thank you.

MR. ELLIOTT:

(Recess at 8:50 a.m.) * * * * *

REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 12th day of December, 2005. Dated

______________________________ Paul A. Zuckerman