United States of America v. Victor Gonzalez, a/k/a Puerto Rican Vic

CLD-395 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2060
________________
UNITED STATES OF AMERICA
v.
VICTOR GONZALEZ, a/k/a Puerto Rican Vic,
Appellant.
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On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 96-cr-00114)
District Judge: Honorable Joseph A. Greenaway, Jr.
__________________________
Submitted on a Motion for Summary Affirmance
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 20, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed October 15, 2007)
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OPINION
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PER CURIAM
Appellant Victor Gonzalez, a federal prisoner, was convicted in 1996 of
conspiracy to engage in a pattern of racketeering activity in violation of 18 U.S.C. §
1962(d), and engaging in a pattern of racketeering activity in violation of 18 U.S.C. §
1962(c), among other convictions not relevant here. Predicate acts for the racketeering

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counts included conspiracy to commit murder and murder contrary to N.J. Stat. Ann. §§
2C:11-3, 2C:2-6, and 2C:5-2. Gonzalez was sentenced under the United States
Sentencing Guidelines to three concurrent terms of life in prison. We affirmed the
conviction and sentence on March 13, 1998 in United States v. Gonzalez, No. 97-5166.
On January 26, 2007, Gonzalez filed a motion for reduction in sentence pursuant
to 18 U.S.C. § 3582(c)(2), contending that his base offense level should have been 19
instead of 43. He based his argument on Amendment 591 to the Guidelines, which went
into effect on November 1, 2000, contending that it prohibited the application of U.S.S.G.
§ 2A1.1, the first degree murder guideline, to him. In an order entered on March 28,
2007, the District Court denied the motion, concluding that Amendment 591 does not
lower Gonzalez’ sentencing range. Gonzalez appeals. After he filed his informal brief,
the government moved to summarily affirm the order of the District Court. We have
reviewed both Gonzalez’ informal brief and his response in opposition to the
government’s motion in deciding this appeal.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because
it clearly appears that no substantial question is presented by this appeal. We have
jurisdiction under 28 U.S.C. § 1291. Our review is plenary. United States v. Thompson,
70 F.3d 279, 280-81 (3d Cir. 1995). As explained by the District Court, section
3582(c)(2) permits modification of a sentence after it has been imposed if a defendant’s
term of imprisonment was based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2) (2007). A sentencing

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1 United States v. Diaz, 245 F.3d 294 (3d Cir. 2001), is not to the contrary. Diaz held
that Amendment 591, which went into effect after the defendant was sentenced but prior
to the conclusion of her direct appeal, could not be applied retroactively to justify
affirming a sentence imposed by the district court because the effect would be to deprive
the defendant of an opportunity for a lower sentence under our case law as it existed prior
to its rejection by the Sentencing Commission. Id. at 304. Diaz is grounded on the need
to avoid an ex post facto problem stemming from applying an amendment enacted after
the defendant was sentenced to punish her more harshly.
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guideline that has been amended after a defendant has been sentenced may be applied
retroactively in a section 3582(c)(2) proceeding if it is given retroactive effect under §
1B1.10(c) of the Guidelines. Thompson, 70 F.3d at 281. Amendment 591 is given
retroactive effect in § 1B1.10(c); thus, Gonzalez may seek relief under that amendment.1
A modification under section 3582(c)(2) is, however, unwarranted in Gonzalez’
case. Amendment 591 changed §§ 1B1.1 and 1B1.2 of the guidelines, the Application
Note to § 1B1.2, and the Introduction to the Statutory Index (Appendix A). United States
v. Diaz, 245 F.3d 294, 301 (3d Cir. 2001). “The new Application Note unequivocally
provides that the court is to use the guideline provided in the Statutory Index (Appendix
A) for the offense of conviction,” id. at 302 (internal quotation marks removed), rather
than a guideline based on judicial findings of actual conduct that did not constitute an
element of the offense.
The Statutory Index directs the sentencing court to § 2E1.1 on Unlawful Conduct
Relating to Racketeer Influenced and Corrupt Organizations for convictions under 18
U.S.C. §§ 1962(d) and 1962(c). The base offense level under § 2E1.1 is 19 or “the
offense level applicable to the underlying racketeering activity,” whichever is greater.

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U.S.S.G. § 2E1.1. Application Note 2 to § 2E1.1 provides that if the underlying conduct
violates state law, the offense level corresponding to the most analogous federal offense is
to be used. Id., Application Note 2. The predicate acts of murder and conspiracy to
commit murder violate New Jersey law. Specifically, a violation of N.J. Stat. Ann. §
2C:11-3a occurs when: (1) The actor purposely causes death or serious bodily injury
resulting in death; or (2) The actor knowingly causes death or serious bodily injury
resulting in death....” It is a crime in the first degree. N.J. Stat. Ann. § 2C:11-3b(1). The
analogous federal statute is the murder statute, 18 U.S.C. § 1111. The sentencing
guideline for first degree murder is U.S.S.G. § 2A1.1, which provides for a base offense
level of 43. A base offense level of 43 carries a sentence of life in prison, the same
sentence Gonzalez is serving.
In short, applying the guideline dictated by the statute of conviction and following
the directions set forth in the guidelines, ineluctably leads to § 2A1.1 as the basis for
determining the base offense level in Gonzalez’ case. “The plain wording of Amendment
591 applies only to the choice of the applicable offense guideline, not to the subsequent
selection of the base offense level.” United States v. Rivera, 293 F.3d 584, 586 (2d Cir.
2002). Amendment 591 did not lower the sentencing range upon which Gonzalez’ term
of imprisonment was based.
We will grant the government’s motion and summarily affirm the order of the
District Court denying the motion to modify sentence.
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