United States Court of Appeals

For the Eighth Circuit

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No. 16-4465

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Edgar Edward Gonzalez

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: October 20, 2017

 Filed: February 1, 2018

[Unpublished] 

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Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG, Judge. 1

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PER CURIAM.

In April 2015, Edgar Edward Gonzalez arranged for Florencio MolinaGonzalez, Juan Carlos Candela, Evelyn Mejia, and Alfonso Ayala, to transport

The Honorable Richard W. Goldberg, United States Court of International

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Trade, sitting by designation.
approximately twenty-two pounds of methamphetamine from Phoenix, Arizona, to

Minneapolis, Minnesota. Police intercepted and arrested the drug couriers near

Albert Lea, Minnesota. Subsequent police investigation led the Federal Bureau of

Investigation (FBI) to Gonzalez.

Gonzalez pleaded guilty to conspiracy to distribute methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and wassentenced to 202

months’ imprisonment. Gonzalez appeals his sentence, arguing that the district court

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erred in applying certain enhancements under the United States Sentencing

Guidelines (Guidelines or U.S.S.G.) and imposed a substantively unreasonable

sentence. We affirm.

Gonzalez argues that the district court erred in applying a 2-level enhancement

for using a dangerous weapon under Guidelines § 2D1.1(b)(1) because no firearm

was ever found. Under Guidelines § 2D1.1(b)(2) cmt. n.11(A), the dangerous

weapon enhancement “should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” During the

sentencing hearing, anFBI agent testified about his conversations with co-conspirator

Ayala and Gonzalez’s associate Joel Sandoval, in which Ayala said that Gonzalez had

given him a 9 mm Sig Sauer handgun to guard methamphetamine that was stored at

a house in Arizona. Sandoval told the agent that Gonzalez owned a .38 caliber semiautomatic pistol and a .45 caliber semi-automatic pistol. During a search of the two

Minnesota residences that Gonzalez used to process the methamphetamine, law

enforcement officers discovered a gun cleaning kit, a box of 9 mm ammunition, a

gun magazine with 9 mm rounds, and a Sig Sauer handgun case. The FBI obtained

a Facebook picture of Gonzalez—taken during the dates alleged in the superseding

indictment—that depicted him with a semi-automatic pistol tucked into his belt. The

The Honorable Donovan W. Frank, United States District Court for the

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District of Minnesota.

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physical evidence and the statements bythe co-conspirators established that Gonzalez

possessed at least one firearm during the conspiracy and that it was not clearly

improbable that the firearm was connected to the methamphetamine conspiracy.

Gonzalez also argues that the district court erred in applying the “stash house”

enhancement by not adequately explaining the basis for its decision. A defendant

receives a 2-level enhancement under Guidelines § 2D1.1(b)(12) if he “maintained

a premises for the purpose of manufacturing or distributing a controlled substance.” 

The Guidelines explain that “[m]anufacturing or distributing a controlled substance

need not be the sole purpose for which the premises was maintained, but must be one

of the defendant’s primary or principal uses for the premises, rather than one of the

defendant’s incidental or collateral uses for the premises.” U.S.S.G. § 2D1.1 cmt.

n.17. The Guidelines instruct the district court to “consider how frequently the

premises was used by the defendant for manufacturing or distributing a controlled

substance and how frequently the premises was used by the defendant for lawful 

purposes.” Id. The FBI agent testified during the sentencing hearing that the coconspirators confirmed that Gonzalez used two residencesin Minneapolisto receive,

store, package, and distribute methamphetamine. The agent further testified that

Gonzalez stayed at one of the residences only “when the drug loads came in.” We

conclude that although the district court’s explanation for its decision might well have

been more thorough, it was entitled to rely on the foregoing testimony in imposing

the enhancement and that no further explanation was required. 

Next, Gonzalez challenges a 3-level enhancement for managing orsupervising

criminal activity under Guidelines § 3B1.1(b). Gonzalez argues that because coconspirator and co-defendant Sandoval did not receive such an enhancement for his

role in the offense, Gonzalez likewise should not have received it. During the

sentencing hearing, however, the FBI agent testified that Gonzalez “had control over

Sandoval” and that Gonzalez was in charge of the entire operation. The district court

acknowledged that while Sandoval was more culpable than the defendants other than

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Gonzalez, it found that Gonzalez’s role in the conspiracy was even more extensive,

which constituted a legitimate distinction between the two, and thus no unwarranted

disparity resulted.

Gonzalez further argues that the district court’s sentencing decision was

affected by psychological bias, pointing to the district court’s observation that the coconspirators in this case were “more terrified and scared than most that I have seen

when they were testifying on what might happen to them.” Gonzalez alleges that this

statement finds no support in the record and thusreflects a subjectivity against which

there is no way to defend. Gonzalez describes the district court as having “engaged

in what is referred to in the social science literature as ‘judgment by

representativeness,’ a phrase coined by none other than Daniel Kahneman & Amos

Tversky” in their article “On the Reality of Cognitive Illusions,” 103 Psychology

Review 582, 582 (1996). Gonzalez argues that the district court’s assumption of the

fear caused byGonzalez’s conduct—a “representativeness” in Gonzalez’s view—may

well have been caused by other reasons, e.g., in-court nervousness or embarrassment. 

This is an interesting, thought-provoking argument, but it does not carry the day, for

ultimately a district court’s evaluation of a witness’s emotional state, whether

expressed by words, physical conduct, or demeanor, should be given the same

deference that we give to its determinations of a witness’s credibility. See United

States v. Mshihiri, 816 F.3d 997, 1004 (8th Cir. 2016) (stating in the context of a

suppression motion that “[t]he district court . . . has a distinct advantage in evaluating

the credibility of witnesses, and its credibility determinations are virtually

unreviewable on appeal”) (quoting United States v. Vinton, 631 F.3d 476, 481 (8th

Cir. 2011) (internal quotation marks omitted)). This is not to say, of course, that all

judges, trial and appellate alike, should not strive to set aside preconceptions,

unwarranted assumptions, and the like in performing their respective roles.

Lastly, Gonzalez argues that hissentence is substantively unreasonable because

the methamphetamine Guidelines lack an empirical basis. Gonzalez argues that a

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district court is not required to impose Guidelines range sentences when it has a

policy disagreement with the Guidelines, citing United States v. Hayes, 948 F. Supp.

2d 1009, 1014 (N.D. Iowa 2013) (citing Spears v. United States, 555 U.S. 261, 263-

67 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 109-10 (2007)). 

True enough, but as we have explained, “while a district court may choose to deviate

from the guidelines because of a policy disagreement, a district court is not required

to do so.” United States v. Manning, 738 F.3d 937, 947 (8th Cir. 2014) (internal

citations and quotation marks omitted). Given the extensive nature of Gonzalez’s

involvement and his management role in this drug distribution conspiracy, we

conclude that his below-Guidelines sentence is not substantively unreasonable.

The sentence is affirmed.

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