USA v. Mathias Pizano

1 The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1542
___________
United States of America,
*
Plaintiff-Appellee, *
* Appeal from the United States
V. * District Court for the Southern
* District of Iowa.
Santiago Gomez, *
also known as Santiago, * [PUBLISHED]
*
Defendant-Appellant. *
___________
Submitted: July 5, 2005
Filed: August 22, 2005
___________
Before MURPHY, HEANEY, AND BEAM, Circuit Judges.
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PER CURIAM.
The Supreme Court granted Santiago Gomez's petition for certiorari in this
case, vacated our earlier judgment, and remanded for further proceedings in light of
United States v. Booker. 125 S. Ct. 1037 (2005). Our earlier opinion affirmed
Gomez's sentence and the district court's 1 findings of drug quantity and role in the
offense. See United States v. Gomez, No. 03-2871, slip op. (8th Cir. Nov. 1, 2004).
Following the mandate of the Supreme Court, we requested supplemental briefing
and have now reconsidered Gomez's case in light of Booker. We conclude that he is

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not entitled to relief because he did not raise a Sixth Amendment objection to his
sentence in the district court and he has not shown plain error in the sentence
imposed. See United States v. Pirani, 406 F.3d 543. We also conclude that under all
the circumstances his sentence was not unreasonable, Booker, 125 S. Ct. at 765-66,
and now substitute this opinion for the one filed on November 1, 2004 which was the
basis for the vacated judgment.
Santiago Gomez was convicted by a jury of conspiracy to distribute cocaine.
The jury found Gomez responsible for an amount of cocaine in excess of 5 kilograms.
This quantity would have given Gomez a base offense level of 32, which combined
with his criminal history category II would have resulted in a guideline sentencing
range of 135 to 168 months. The district court found him responsible for 58.54
kilograms of cocaine, however, which gave him a base offense level of 36. The court
also applied a three level enhancement for his role as a manager or supervisor, and
the resulting guideline range was 292 to 365 months. The district court sentenced him
to 300 months. Gomez appeals, arguing that the court's findings of drug quantity and
role in the offense were not supported by the evidence. He further challenges his
sentence as being unconstitutional after Booker.
Gomez argues that 40 kilograms of cocaine were improperly attributed to him.
He contends the evidence did not show that he took part in the 40 kilogram
transaction involved in the case and that there had been at most preliminary
discussions about the deal. He also argues that the transaction was not within the
scope of the conspiracy and that the conspiracy was not capable of delivering that
amount. The government points to evidence that Gomez was part of the same drug
network as those who planned the transaction, that there was an agreement to do the
deal, that the transaction was a reasonably foreseeable activity of the conspiracy in
which Gomez had an integral role, and that the conspiracy was capable of supplying
thousands of kilograms of cocaine. We conclude that the district court did not clearly
err in its finding of drug quantity.

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Gomez also argues there was no proof he had a managerial or supervisory role
in the conspiracy. There was evidence that Gomez controlled the flow of cocaine and
that he directed Darryl Wilson, an American distributor of the cocaine, during the
course of the conspiracy in regard to the delivery times and locations of the cocaine.
There was additional evidence that Gomez ordered the purchase of mobile phones for
the conspiracy and that he directed Wilson to travel to Mexico to meet with the leader
of the conspiracy. We conclude that the district court did not clearly err in its finding
of Gomez's role in the offense.
Gomez argues that he did not forfeit his right to contest the imposition of his
sentence as being unconstitutional because he proceeded to trial by jury and objected
to the district court's imposition of a sentence based on a higher quantity drug amount
than found by the jury. He did not raise any Sixth Amendment issue, however, or
object to the application of mandatory sentencing guidelines or cite Apprendi v. New
Jersey, 530 U.S. 466 (2000). We thus review his sentence for plain error. United
States v. Pirani, 406 F.3d 548-49 (8th Cir. 2005) (en banc).
To establish plain error, Gomez must show (1) an error, (2) that is plain, that
not only (3) affected his substantial rights, but also (4) "seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings." Johnson v. United
States, 520 U.S. 461, 466-67 (1997). The district court treated the guidelines as
mandatory so the first two prongs are established. To meet the third prong, Gomez
must show a "reasonable probability" that the district court would have imposed a
more lenient sentence under the now advisory guidelines. Pirani, 406 F.3d 551.
Gomez maintains that the significant increase in the sentencing range caused
by the court's holding him responsible for over 50 kilograms of cocaine and the
imposition of a sentence toward the bottom of the range create a reasonable
probability that the district court would have imposed a lesser sentence under an
advisory guideline system. Gomez fails to point to anything in the record to show

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2Judge Colloton has recused himself from all cases for which he was
responsible prior to his appointment.
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that the district court actually considered the sentence it imposed to be unjust,
however. Moreover, the court imposed a 300 month sentence when it could have
sentenced him to 292 months at the bottom of the guideline range. We conclude that
Gomez has failed to establish that the court would have imposed a lesser sentence
under an advisory guideline regime.
We also review Gomez's sentence for unreasonableness in light of the
sentencing factors set forth in 18 U.S.C. § 3553(a). See Booker, 125 S. Ct. at 765-66.
Gomez was actively involved in a drug conspiracy that involved over 50 kilograms
of cocaine and millions of dollars. The trafficking consistently crossed state and
national boundaries. Gomez knowingly contributed to the conspiracy's growth and
the infrastructure necessary for the conspiracy to continue. In light of Gomez's
involvement in the conspiracy and the danger the conspiracy posed to the public, the
district court's determination that 300 months imprisonment "adequately protects the
public and provides appropriate punishment for the defendant" is not unreasonable.
18 U.S.C. § 3553(a)(2)(A)-(C).
Finally, Gomez argues that it would violate his due process rights if this court
were to rely on Pirani, 406 F.3d 543, in deciding his case because Judge Steven M.
Colloton, a member of the en banc court, was the United States Attorney who
previously oversaw Gomez's prosecution.2 This argument is without merit. Gomez
is subject to the same laws that govern other criminal defendants, and the en banc
decision in Pirani, 406 F.3d 543, applies to all criminal sentencing appeals in this
circuit when relevant. This panel's application of the rule of Pirani to Gomez's case
does not infringe on his due process rights.
Accordingly, we affirm the judgment of the district court.

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HEANEY, Circuit Judge, concurring.
I continue to believe that a defendant's challenge to the factual basis for a
sentence enhancement preserves his Sixth Amendment sentencing claim. See United
States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover,
I adhere to the view stated by Judge Bye in Pirani, that defendants who did not
properly preserve their Booker claims in the district court are nonetheless generally
entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67
(Bye, J., dissenting). Because a majority of our court held to the contrary on both
counts, however, I concur.
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