United States District Court, E.D. Louisiana
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
filed four objections to the draft presentence report
prepared by the U.S. Probation officer. The Probation officer
initially rejected all of the defendant's arguments, but
the officer then filed a third addendum to the presentence
report concluding that the defendant was correct that he
should not be categorized as a career offender and that his
theft conviction should not count toward his criminal history
score. The government agreed with the conclusions of U.S.
Probation. Accordingly, the only remaining objection is
defendant's argument that the two-level dangerous weapon
enhancement is unwarranted. For the following reasons, that
objection is denied.
to U.S.S.G. § 2D1.1(b)(1), “[i]f a dangerous
weapon (including a firearm) was possessed” by the
defendant, the offense level should increase by two levels.
Application Note 11(A) to the guidelines explains that the
enhancement for weapon possession “reflects the
increased danger of violence when drug traffickers possess
weapons.” It further states that the enhancement should
be applied if the firearm was present, “unless it is
clearly improbable that the weapon was connected with the
offense.” See U.S.S.G. § 2D1.1(b)(1) cmt.
enhancement is applicable here for two reasons. First,
defendant was present when his co-conspirator Edwin Martinez
used different firearms to threaten an individual related to
a drug transaction organized by defendant. Second, a firearm
was found in defendant's vehicle at the time of his
arrest, in close proximity to nine grams of cocaine and $3,
300 in U.S. currency.
introductory paragraph to his brief, defendant states that he
“would like to note that these objections are not to be
interpreted to contrast the facts contained and agreed upon
in the factual basis.” According to the factual basis,
defendant obtained three kilograms of cocaine from
co-conspirator Edwin Martinez to sell to an individual named
“Rambo.” Defendant was introduced to Rambo by
co-conspirator Paul Norris. After defendant delivered the
drugs, Rambo failed to pay. When Norris and defendant could
not locate Rambo, they met with Martinez at defendant's
body shop. Martinez threatened Norris with a rifle and
demanded payment while defendant was present.
the same day, the confrontation continued at a separate body
shop owned by Norris. Martinez and a fourth individual named
“Z.U.” again threatened Norris with a rifle and a
handgun while defendant was present. The police were
eventually called to the scene by Norris's nephew. When
police removed Gonzales from his vehicle, they observed on
the driver side floorboard a small plastic bag containing
approximately nine grams of cocaine. They also observed a
.380 semi-automatic pistol tucked between the driver's
seat and the center console. A records check revealed that
the firearm was stolen.
does not contest any of the above facts. Instead, he simply
argues that at no point during the altercations did he
possess a firearm or threaten anyone with a firearm. With
respect to the pistol found in his vehicle, while defendant
nowhere asserts that the gun did not belong to him, he does
emphasize that he was not charged with possession of the
pistol and that the government has not alleged that he
possessed the firearm in connection with the distribution of
defendant's sentence may properly be enhanced under
U.S.S.G. § 2D1.1(b)(1) if the possession of a firearm by
one of his coconspirators was “reasonably
foreseeable” to the defendant. United States v.
Hernandez, 457 F.3d 416, 423 (5th Cir. 2006) (citing
United States v. Dixon, 132 F.3d 192, 202 (5th Cir.
1997)). “[O]rdinarily, one coconspirator's use of a
firearm will be foreseeable because firearms are ‘tools
of the trade' in drug conspiracies.”
Dixon, 132 F.3d at 202 (citation omitted). Again,
defendant was present when Martinez threatened Norris with a
rifle and a handgun. For the enhancement to apply, it is not
necessary that defendant himself possessed the weapon.
Defendant knew that he and Martinez were meeting with Norris
to discuss unpaid drug debts, and he knew that Martinez was
unhappy with the situation. Under those circumstances,
Martinez's possession of the firearms was reasonably
foreseeable to defendant, and defendant is subject to the
presence of the pistol in defendant's vehicle also
provides a sufficient basis for the enhancement. The
application notes to the guidelines provide that the
enhancement should be applied when a weapon is present
“unless it is clearly improbable that the weapon was
connected with the offense.” See U.S.S.G.
§ 2D1.1(b)(1) cmt. n. 11(A). Defendant had the
semi-automatic pistol in his vehicle as he drove that vehicle
to Norris's body shop. Defendant knew that a
confrontation was forthcoming, having already witnessed
Martinez threaten Norris with a rifle at defendant's body
shop. The guidelines explain that the enhancement for weapon
possession “reflects the increased danger of violence
when drug traffickers possess weapons.” See
Id. When defendant chose to bring another firearm into
an escalating situation involving drug money, he increased
the risk that violence would take place. The fact that
defendant did not hold the firearm in his hand during the
confrontation does not make it clearly improbable that the
weapon was connected to drug trafficking.
“[t]he Government may establish a connection between
the weapon and the offense by showing that the weapon was
found in the same location where drugs or drug paraphernalia
are stored or where part of the transaction occurred.”
United States v. Diaz, 532 F. App'x 527, 528
(5th Cir. 2013) (internal quotation marks and citation
omitted). The presence of the cash and the cocaine in close
proximity to the weapon further establishes the weapon's
connection to the drug conspiracy. The pistol confiscated from
defendant's vehicle warrants the two-level enhancement
irrespective of Martinez's actions, and U.S. Probation
was correct to apply the enhancement on that basis alone.
foregoing reasons, IT IS ORDERED that the defendant's
remaining objection ...