United States v. Aguirre

320 F. App'x 706

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2009
• Docket: No. 08-30099
• Status: Published

Opinion

MEMORANDUM

**

Guillermo Aguirre appeals from the 151-month sentence imposed following his jury-trial conviction for conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Aguirre challenges the district court’s application of the firearm enhancement pursuant to U.S.S.G. § 2Dl.l(b)(l). We conclude that the district court did not clearly err in determining that the weapon was possessed in connection with the offense and that Aguirre failed to establish that it was “clearly improbable” that the firearm was connected to the drug conspiracy. See U.S.S.G. § 2D1.1(b)(1), cmt. n. 3; see also United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir.2006).

Aguirre’s contention that the district court erred by considering for sentencing purposes conduct underlying a dismissed count is, as he acknowledges, foreclosed. See United States v. Mercado, 474 F.3d 654, 656 (9th Cir.2007); United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir.2006).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.