Patterico's Pontifications

6/19/2008

9th Circuit Upholds Mandatory 5 Year Consecutive Sentence for Border Patrol Agent’s Gun Possession When Convicted of Possessing Marijuana for Distribution On Duty — Same Issue That Resulted in 10 Year Sentence for Compean/Ramos

Filed under: General — WLS @ 2:55 pm



Posted by WLS:

This morning the 9th Circuit affirmed  both the conviction and sentence of former Border Patrol Agent Michael Carlos Gonzalez, including that portion of his sentence — a mandatory consecutive term of 5 years — that stemmed from his conviction under 18 USC Sec. 924(c) for “using or carrying” a firearm during and in relation to a drug trafficking crime. 

The facts are straightforward — a load vehicle full of marijuana was stopped by a state law enforcement officer in Arizona.  Three Border Patrol agents in plain clothes and a personal vehicle  stopped to assist the Arizona officer who had made the stop.  Two of the BP agents along with the DPS officer went in pursuit of the load vehicle’s occupants who had fled the scene.  A third BP agent remained behind to safeguard the load vehicle.  Shortly after, BP Agent Gonzalez, on-duty and in uniform driving a BP vehicle arrived at the scene and conferred with the BP agent who had remained behind.    Gonzalez claimed to hear a gunshot, and the plain clothes BP agent went to investigate while Gonzalez remained with the load vehicle.  While alone, Gonzalez removed a 10 KG “bale” of marijuana from the load vehicle and placed it in the trunk of his BP vehicle.  Unknown to Gonzalez at the time, however, was that the dash-mounted video camera in the Arizona officer’s vehicle had been activated during the traffic stop, and continued running, catching Gonzalez on video in the act of removing the marijuana. 

Gonzalez was indicted and later convicted at trial for possessing marijuana with the intent to distribute, and for using or carrying a firearm during and in relation to a drug trafficking crime.  He was convicted by the jury on both counts. 

The defendant argued, similar to Ramos and Compean, that his “using and carrying” a firearm was because it was a part of his uniform that was required, and played no role in his other criminal activity.   The Ninth Circuit rejected this claim in affirming the conviction and sentence:

“Congress intended § 924(c) to apply when police officers, or in this case, Border Patrol agents abuse the privilege of carrying a firearm by committing a crime with the weapon.  See United States v. Contreras, 950 F.2d 232, 241 (5th Cir.1991)(citing S.Rep. No. 225, 98th Cong., 2d Sess. 315 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n.10).  However, courts have recognized that § 924(c) is not automatically violated any time a uniformed law enforcement officer commits a drug trafficking crime. See, e.g. Vasquez-Guadalupe, 407 F.3d at 500 n.4 (1st Cir. 2005) (quoting Castro-Lara, 970 F.2d at 983). There must be more to trigger a violation of § 924(c). “The phrase ‘in relation to’… clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence ….[T]he gun at least must facilitate, or have the potential of facilitating, the drug trafficking offense.”

The 924(c) statute applies to “using or carrying” a firearm during or in relation to a “crime of violence” or a “drug trafficking crime.”  The 9th Circuit cited the following evidence as supporting the conviction:

The government presented sufficient evidence for a rational jury to find that Gonzalez possessed a firearm in relation to his theft of the marijuana. Agent Rogers testified that he never would have left Gonzalez alone with the marijuana had he been unarmed, because doing so would have put Gonzalez in danger. Agent Rogers testified that he had safety concerns when leaving Gonzalez alone with the vehicle because the occupants could have come back for the marijuana or another vehicle could have ambushed him. He further testified he would not leave an unarmed officer alone to protect a load of marijuana and that the fact that Gonzalez had a gun was “crucial” to his decision to leave Gonzalez there alone.

[7] Gonzalez himself admitted that he thought drug trafficking was a dangerous activity and that having a service weapon protected him. Gonzalez’s own testimony tends to show that the weapon emboldened him and allowed him to take control of the marijuana load, lent him an air of legitimacy, and reduced the chance that he would be interrupted.

Gonzalez recevied a 30 months sentence on the marijuana charge, and an additional 60 months for the gun count.  This is the same manner in which Compean and Ramos received 120 additional months on their sentences — the difference being that they discharged their firearms rather than merely using/carrying them.

I still think there is a serious issue in the trial record of Compean and Ramos with respect to limits placed upon the cross-examination of Aldrede-Davila, and the inability of the government to clearly explain the nature of the immunity he had been afforded, which influenced the court’s ruling on the scope of cross-examination.   I’m not convinced that error was so severe as to require reversal, and since much of the trial transcript on the subject of Aldrede-Davila’s other criminal activity remains under seal, its hard to know what was before the court when it made the ruling.

42 Responses to “9th Circuit Upholds Mandatory 5 Year Consecutive Sentence for Border Patrol Agent’s Gun Possession When Convicted of Possessing Marijuana for Distribution On Duty — Same Issue That Resulted in 10 Year Sentence for Compean/Ramos”

  1. I would uphold the sentence and double it. Law enforcement officers who do the crime should do the time. In the other case the two officers committed no crime and were railroaded. About the same as some do nothing general railroading the marines to build his own career. Now the marines won so the general and everyone involved should do what ever time a jury decides.

    Scrapiron (c36902)

  2. Ramos and Compean weren’t drug traffickers. Nice try though.

    j curtis (c84b9e)

  3. j curtis, your comment makes no sense. Not even a nice try.

    SPQR (26be8b)

  4. WLS,

    I agree with your last paragraph but I’m still having problems with 924(c) [“using or carrying” a firearm during or in relation to a “crime of violence” or a “drug trafficking crime”]. Obviously criminals and law enforcement officers can be armed but criminals choose to arm themselves, while law enforcement officers are required to be armed when they are on duty. Both may be armed but I’m still having a hard time treating them the same.

    DRJ (1a5f9b)

  5. O

    bviously criminals and law enforcement officers can be armed but criminals choose to arm themselves, while law enforcement officers are required to be armed when they are on duty.

    Yeah, well, the boarder guy chose to distract the othe rguy, and swipe a brick of Mary Jane…

    Scott Jacobs (d3a6ec)

  6. I’m afraid that WLS is right about the implications for Ramos and Compean. The Fifth Circuit is a “law and order” circuit and it will not draw that fine a distinction between this case and Ramos-Compean. I hope I’m wrong.

    nk (d86adb)

  7. Scott,

    Yes, and he should be punished for that. I just don’t see how the fact he was required to carry a gun made his theft worse. The Court focused on the fact that his possession of a gun made the crime easier to pull off. I submit what really made it easier to pull off was the fact he was a law enforcement officer. Would the other officers have left a civilian with a gun in charge? I doubt it. The important fact was his status as a law enforcement officer.

    If we want to pass laws, and some places already have them, that criminalize abuse of a public trust – fine with me, and this guy should be convicted of that. But why try to manipulate a statute designed to punish criminals who choose to carry guns?

    DRJ (1a5f9b)

  8. Obviously criminals and law enforcement officers can be armed but criminals choose to arm themselves, while law enforcement officers are required to be armed when they are on duty.

    Law enforcement officers are also required not to traffick in drugs.

    Michael Ejercito (c5d682)

  9. DRJ #4 law enforcement officers are required to be armed when they are on duty.

    I think it’s the on duty part that negates the exemption of required.

    Apogee (366e8b)

  10. NK,

    It may not get to that point if it orders a retrial on other grounds.

    DRJ (1a5f9b)

  11. Michael Ejercito,

    True, but we don’t get to pile on someone just because they are a law enforcement officer. I’m trying to think through why this makes sense, and I’m not having any luck yet.

    Apogee,

    Can you elaborate on that for me?

    DRJ (1a5f9b)

  12. DRJ #11 – Can you elaborate on that for me?

    Yes – probably poorly. I wrote it before your #7, so it may be outdated, ineffectual, and wrongheaded. But that’s my specialty.

    I was trying to raise the possibility that the dereliction of duty by the officer subsequently rendered him a criminal, and the protections afforded law enforcement in the course of their normal duties would then no longer apply. His actions equated him to a drug dealing criminal, and thereby susceptible to the same violations.

    I don’t know CCW law (as I’m not an attorney), but how would someone with a valid CCW be treated if they committed a similar crime?

    What do you think?

    Apogee (366e8b)

  13. Think about it like this, maybe…

    In Michigan, I believe it is required by law that all police carry a weapon at all times, even when off duty.

    If an off duty cop was trafficing drugs, carrying the required weapon, what do you think the punshiment should be (assuming criminal laws that are identical to the 5th Circuit)?

    Scott Jacobs (d3a6ec)

  14. #3

    Oh, that’s right. It’s your contention that Ramos and Compean wanted to kill an unarmed man and have a dead body on their hands that they would have to answer for. At least, I think that’s what you are asserting. If not, then I don’t see the the “crime of violence” or a “drug trafficking crime.”

    What the Bush people did to these two is the worst miscarriage of justice I’ve ever seen. Unfortunately, it will be a long time before Bush, Sutton, Cardone et al have to pay for their crime, but I’ll never give up hope that that day will eventually come.

    j curtis (c84b9e)

  15. DRJ – I would post this on the Rutten thread, but that’s getting too serious.

    What makes my California blood boil is your suggestion of offshore Nuclear Power Plants. That’s crazy. However, Scott Jacobs’ idea of drilling in the Middle Ages is starting to make some sense.

    Apogee (366e8b)

  16. Apogee #12,

    That’s a good point. I need to think about it, but I guess my real problem is that I don’t like charging people with crimes that seem contrived. Sometimes you have to do it but there should be some logic to it that gives people notice they may be committing that particular crime. It’s obviously a crime to steal and this BP agent was charged with that, but it’s not a crime for a law enforcement officer to carry a gun.

    My preference is for there to be laws that criminalize actions by law enforcement officers that abuse their trust, but I’m not sure I’m right on this. I’m envolving on the topic.

    Also, I really liked your comment #15. It was funny.

    DRJ (1a5f9b)

  17. It would be better if I evolved on this topic, rather than envolving.

    DRJ (1a5f9b)

  18. Hey, Patrick. My T-Shirt just shipped. That was quick.

    DRJ (1a5f9b)

  19. j curtis, that’s not an improvement in the coherency department.

    The topic is about sentencing enhancements for firearms use/possession, something that you don’t seem to understand at all. No one said that Ramos and Compean were accused of drug trafficing.

    SPQR (26be8b)

  20. DRJ #16 – I see your point regarding the stretch of charging a LE officer with a gun crime – it seems like piling on. That was in part the reason for my CCW portion of the question. How is the legal possession of a firearm treated when the possessor commits a crime? I wonder if there’s some equal protection rationale for the voiding of gov’t privilege when gov’t personnel commit crimes?

    As for your #18, Did you bet Patrick a T-Shirt that I would post lousy jokes?

    Apogee (366e8b)

  21. DRJ #10,

    Yes. Besides the Aldrete-Davilla issue, I believe there is a jury instruction question on the gun charge as well.

    nk (d86adb)

  22. I think there is, too, NK, and I assume the court will have to address that issue. But appellate courts have surprised me before and you know what they say about assuming things.

    DRJ (1a5f9b)

  23. Apogee,

    I don’t know the answer to your CCW hypothetical, but it’s a good question. My guess is that since 924(c) criminalizes anyone who “uses or carries” a gun, it doesn’t matter if the gun is legal and that supports criminalizing the same conduct by law enforcement officers.

    What I’m considering are laws that only apply to public officials. I think the requirement that they carry firearms is a special circumstance that might justify a tailored law.

    DRJ (1a5f9b)

  24. DRJ #23 – a special circumstance that might justify a tailored law.

    I hear you in that this could lead to a very negative outcome whereby police are damned in both directions. I have perhaps made the mistake of viewing this issue through the lens of the Gonzalez incident only. You may be right in separating out some specific charges so that LEO are not subject to extra penalties in all situations.

    Again, your balance forces me to re-evaluate my opinions.

    Apogee (366e8b)

  25. Then again, there’s something to be said for burying a cop that would steal drugs while he’s supposed to be on duty…

    Scott Jacobs (d3a6ec)

  26. True, Scott, but the laws that apply to violations of the public trust often have the most severe punishments. It’s possible that the tailored law might actually have more severe penalties than 924(c). The point is the law enforcement officers would know the penalties. But I guess they know them now.

    DRJ (1a5f9b)

  27. The topic is about sentencing enhancements for firearms use/possession

    No, spqr, almost all LEOS possess firearms so there is more to it than that. Go read 924(c) and figure it out.

    j curtis (c84b9e)

  28. I believe that “ignorance of the law” has long since been discounted as an excuse… :)

    Scott Jacobs (d3a6ec)

  29. Which one shot someone in the butt and lied about it?

    Alta Bob (d2c526)

  30. DRJ #26 – I sense that you’re not talking about letting cops get off lightly, but that you’re worried about cops getting slammed when, in the course of carrying out their duties, they end up in error due to odd circumstances.

    That there’s a difference between an LEO that is later found to be guilty of a crime versus an LEO that intentionally sets out to commit a crime. You’d like a tailoring of the law to delineate those differences.

    Am I close here?

    Apogee (366e8b)

  31. Having just remembered that the Circuits are not bound by the decisions of the other Circuits, I am a little less pessimistic. But only a little. If there is a conflict between the Fifth and the Ninth, the Supreme Court may grant certiorari and there probably will not be a decision until a year from now. Even then, it will likely be only for a new trial. Ramos and Compean will still be prisoners.

    Moral of the story: Don’t shoot someone, who is smuggling 840 lbs. of marijuana into the United States, in the ass, in the jurisdiction of a U.S. Attorney who has either a relative or neighbor who smuggles drugs into the United States. (Not making it up. Prosecution’s closing argument.)

    nk (d86adb)

  32. If you look at the first quote from the 9th’s opinion, you can see them citing to a 5th Cir. holding on the subject.

    And, as noted by another, the 5th is the most “law and order” circuit, while this particular opinion involved two of the more liberal members of the 9th.

    wls (0ee728)

  33. j curtis, your comments remain incoherent.

    SPQR (26be8b)

  34. Apogee #30,

    That’s a good distinction but I’m not at that point yet. In theory, I don’t have a problem with a court deciding that 924(c) applies to peace officers who commit crimes. The clear text of 924(c) applies to persons who “use and carry” guns, and officers like Gonzalez, Ramos, and Compean fit that definition.

    My concern is that, especially with Ramos and Compean, they weren’t carrying a firearm in furtherance of a crime. They carried their guns as a part of their jobs. That bothers me but that’s as far as I’ve gotten on this issue.

    DRJ (1a5f9b)

  35. DRJ, I find the opposite distinction. Ramos and Compean could have assaulted someone with a stick and not received the sentence enhancement. The sentence enhancement makes more sense to me with them.

    But this clown who stole marijuana, what was he supposed to do to avoid the sentence enhancement? Take his side arm off, and then put the marijuana in the trunk?

    SPQR (26be8b)

  36. My man Baretta comes to mind…”Don’t do the crime if you can’t do the crime.”

    I give you a gun, place my trust in you, and you decide to commit a felony. See ya.

    Ed (a9dfde)

  37. Ed – But Baretta wasn’t convicted.

    Apogee (366e8b)

  38. But this clown who stole marijuana, what was he supposed to do to avoid the sentence enhancement? Take his side arm off, and then put the marijuana in the trunk?

    How about not putting the marijuana in the trunk?

    Ed – But Baretta wasn’t convicted.

    Sometimes you get lucky. But don’t count on it.

    Michael Ejercito (c5d682)

  39. Would jury nullification help here?

    Let the jury figure out if the law was a bad law and, if it was, then let the guy off scot free?

    Jaybird (f420c4)

  40. Well, in a perfect world, the court could refer to the Congressional Record, and find out what the “intent” of Congress was in passing this legislation.
    But, that would be too easy!

    Another Drew (8018ee)

  41. WLS,

    Today in US vs Looney the Fifth Circuit upheld a 924(c) enhancement in a methamphetamine case against a 53-year-old female defendant with no priors. She was sentenced to 548 months, which is effectively a life sentence at her age. This supports your suggestion that Ramos and Compean are unlikely to get relief from the Fifth Circuit on the 924(c) issue.

    DRJ (81c148)

  42. Michael, not responsive to the point.

    SPQR (26be8b)


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