United States of America v. MARCO ANTHONY GOMEZ, Jr., AKA Silky

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCO ANTHONY GOMEZ, Jr., AKA
Silky,
Defendant - Appellant.
No. 12-10263
D.C. No. 2:07-cr-00248-WBS-10
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN SANTOS CASTRO, AKA
Santos Benjamin Castro, AKA Reaper,
Defendant - Appellant.
No. 12-10265
D.C. No. 2:07-cr-00248-WBS-9
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-10266
D.C. No. 2:07-cr-00248-WBS-11
FILED
NOV 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.

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v.
EDWARD FUENTES,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted on November 4, 2013
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
The defendants, Marco Gomez, Benjamin Castro, and Edward Fuentes, were
sentenced to incarceration (300 months, 300 months, and 240 months, respectively)
after pleading guilty to conspiracy to manufacture or possess and distribute a
controlled substance under 21 U.S.C. §§ 841(a)(1), 846, and use of a communication
facility for the purpose of drug trafficking under 21 U.S.C. § 843(b). The defendants
now appeal these sentences, alleging various procedural errors and also substantive
unreasonableness. We have jurisdiction under 28 U.S.C. § 1291; United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We AFFIRM .
The district court committed no procedural error in sentencing Gomez to 300
months incarceration. The court considered all of the statutorily required factors under
the Guidelines and 18 U.S.C. §3553(a), of which the “lack of youthful guidance” is
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not included. See United States v. Ameline, 409 F.3d 1073, 1093 (9th Cir. 2005) (en
banc) (Wardlaw, J., concurring in part and dissenting in part) (“district courts may
even consider…lack of guidance as a youth” (emphasis added)). Moreover, the district
court did not categorically reject the argument regarding lack of youthful guidance.
It acknowledged that in some cases it may be an appropriate consideration at
sentencing. Further, the court did not err in refusing to grant Gomez the full 3-point
reduction for “Acceptance of Responsibility” under U.S.S.G. §3E1.1(b). The
Guideline provides for an additional one-point reduction “upon motion of the
government,” and here no such motion was made. U.S.S.G. §3E1.1(b). The district
court correctly concluded that the government’s decision to not move for the
additional one-level reduction was not irrational or arbitrary. Fuentes pleaded guilty
at an earlier date than Gomez. The district court also properly considered that the
three-day sentencing hearing placed additional burden on the government. The court
adequately explained its above-Guidelines sentence in an extensive memorandum and
in discussion at sentencing .
Castro’s sentence is also procedurally and substantively sound. The district
court relied on sufficient evidence including the testimony of two witnesses to find a
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manager/supervisor aggravator under U.S.S.G. §3B1.1(c). 1 The court considered all
of the statutorily required mitigating factors under 18 U.S.C. §3553(a): criminal
history was addressed in depth during the Guidelines calculation, as was Castro’s role
in the offense. While the court did not explicitly mention education and vocational
training, arguments based on these factors were waived because they were not raised
to the district court. Moreover, it ought not be assumed that the court did not consider
this factor simply because it did not “tick [it] off” in its sentence. United States v.
Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc). Lack of youthful guidance and
rehabilitative potential can properly be considered but are not included as §3553(a)
factors that must be considered. Here, the district court considered them, but gave
them little weight.
Castro’s sentence is also substantively reasonable—it is not the “rare occasion”
that requires vacatur. United States v. Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012)
(en banc). Castro was convicted of trafficking methamphetamine and was a “regiment
commander” in a conspiracy run by a dangerous prison gang, “Nuestra Familia.”
Moreover, he could properly be considered a dangerous person: he was on parole at
1 Castro’s reliance on United States v. Harper is misplaced. Harper holds
only that a role-aggravator must be supported by “specific findings” of evidence of
leadership, and not mere increased culpability. United States v. Harper, 33 F.3d
1143, 1150-51 (9th Cir. 1994). Even inferences from evidence are acceptable. Id.
Here there is direct evidence.
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the time of his arrest, and has been convicted of three batteries and two assaults with
a deadly weapon. Castro’s sentence is also within the range established by the United
States Sentencing Commission. See Carty, 520 F.3d at 994.
The sentence of Fuentes was also substantively reasonable. Fuentes was a high
level member of the Nuestra Familia prison gang, reporting directly to one of its
“Generals” and tasked with creating a new “regiment” in the community of Merced.
He was convicted of trafficking a large amount of methamphetamine and cocaine.
When he was younger he was convicted of voluntary manslaughter for his
involvement in a Nuestra Familia murder, and after his release from prison he
immediately returned to working with the gang. His sentence was above the guidelines
range, but considering the totality of circumstances, it was not unreasonable.
AFFIRMED.
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