United States v. Darlin Abel Valencia Mero

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 10, 2021
• Docket: 19-14605
• Status: Unpublished

Opinion

USCA11 Case: 19-14605 Date Filed: 03/10/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14605 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cr-20030-KMW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARLIN ABEL VALENCIA MERO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 10, 2021)

Before NEWSOM, LAGOA and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 19-14605 Date Filed: 03/10/2021 Page: 2 of 6

Darlin Abel Valencia Mero appeals his 108-month sentence for conspiracy

to possess and possession with intent to distribute cocaine and conspiracy to

operate and embark and operating and embarking in a semi-submersible vessel

without nationality. Mero argues that the district court erred in applying a two-

level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm at the

time of the commission of the drug offense. After careful review, we affirm.

I

The facts of the case are well-known to the parties, and so we’ll repeat them

only briefly. On December 23, 2018, the U.S. Coast Guard stopped a self-

propelled semi-submersible (SPSS) vessel (i.e., a narco-submarine) in international

waters. On board the vessel, the Coast Guard found 769 kilograms of cocaine and

four individuals, one of whom was Mero. Mero identified himself as the master of

the vessel and told the Coast Guard that he was from Ecuador. The Coast Guard

also found on board in the vessel’s helm a rusted firearm with a spent round casing

inside the chamber and a missing spring.

Mero pleaded guilty to a four-count indictment of drug trafficking and

conspiracy, and a probation officer prepared a pre-sentence investigation report

(PSI). Mero objected to the PSI’s application of a two-level sentencing

enhancement under U.S.S.G. § 2D1.1(b)(1) for the firearm found on the vessel. At

a hearing, Mero’s attorney argued that he didn’t think the firearm was operable

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because a spring had fallen out of it during the voyage. At the same hearing, a

Drug Enforcement Administration (DEA) Agent testified that the firearm was

extremely rusted when he received the firearm and that the round inside the

firearm’s chamber was rusted, rendering it inoperable. He testified that he

believed that the weapon was inoperable when the Coast Guard seized it.

At Mero’s final sentencing hearing, the district court denied Mero’s

objection to the two-level enhancement under § 2D1.1(b)(1). The district court

noted that there had been a vigorous discussion regarding the two-level

enhancement at a sentencing hearing for another codefendant, and the district court

believed that the correct calculation would be to apply the § 2D1.1(b)(1)

enhancement because the defendants, including Mero, constructively possessed the

firearm, making the firearm’s connection to the offense not clearly improbable.

After granting Mero the two-level safety-valve reduction pursuant to

§ 5C1.2(a)(2), Mero’s total offense level was 37 with a range of 210 to 262

months’ imprisonment. The district court sentenced Mero to 108 months’

imprisonment followed by five years of supervised release. 1

1 We review a district court’s factual findings underlying its sentencing determination for clear error and the application of those facts to the guidelines de novo. United States v. Williams, 527 F.3d 1235, 1247–48 (11th Cir. 2008).

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II

On appeal, Mero raises one issue—whether the district court erred in

overruling his objection to the two-level enhancement under U.S.S.G.

§ 2D1.1(b)(1). He argues that § 2D1.1(b)(1) shouldn’t apply to his offense

because he never actually possessed the firearm and because the firearm’s

inoperability rendered it clearly improbable that the firearm was connected to the

offense.

The sentencing guidelines provide for a two-level enhancement if “a

dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

The application notes to this provision instruct that the “enhancement should be

applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” Id. cmt. n. 11(A). The government bears the

initial burden of showing, by a preponderance of the evidence, that the weapon was

present at the site of the charged conduct or that the defendant possessed it during

conduct associated with the offense of conviction. United States v. George, 872

F.3d 1197, 1204 (11th Cir. 2017). If the government meets this initial burden, then

the burden shifts to the defendant to show that the connection between the offense

and the weapon was “clearly improbable.” Id.

Here, the government met its initial burden to show that the weapon was

present at the site of the drug trafficking conspiracy. Mero doesn’t contest the fact

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that the firearm was found on the vessel, and the proximity between the firearm

and the drugs on the vessel was sufficient to show that the weapon was present at

the site of the charged conduct. See United States v. Carillo-Ayala, 713 F.3d 82,

91 (11th Cir. 2013) (recognizing that “proximity between firearms and drugs,

without more, is sufficient to meet the government’s initial burden under

§ 2D1.1(b)(1)”). Furthermore, Mero’s argument that § 2D1.1(b)(1) requires that

he actually possess the firearm lacks weight. Possession for § 2(D)1.1(b)(1)’s

purposes can be actual or constructive, and constructive possession occurs when a

defendant exercises “ownership, dominion, or control over an object itself or

control over the premises in which the object is concealed.” United States v.

Villarreal, 613 F.3d 1344, 1359 (11th Cir. 2010) (emphasis added) (quotation

marks omitted). Mero was the master of the vessel and so clearly exercised control

over the premises in which the firearm was concealed. Therefore, he

constructively possessed the firearm.

Mero has also failed to show that the firearm’s connection to the offense was

clearly improbable. Even though the firearm was rusted and inoperable at the time

of seizure, there’s no evidence that the firearm was inoperable from the beginning

of his and his co-conspirators’ journey. Moreover, there is no requirement that a

weapon be operable to be “connected with” the offense. See Carillo-Ayala, 713

F.3d at 95 (“The gun’s presence made the defendant’s conduct more culpable and

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supported the finding of a ‘connection’ between the offense and the firearm.”); cf.

also United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002) (holding that there

is “no requirement that the firearms be loaded or operable to meet the ‘in

connection with’ requirement” in U.S.S.G. § 2K2.1(b)(5)). It’s also not clearly

improbable that a firearm brought onto the vessel by one of Mero’s co-conspirators

in a drug trafficking mission would be related to the drug trafficking. United

States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005) (affirming a district court’s

finding that possession of a firearm was in furtherance of a drug conspiracy where

the firearm was found in proximity to the drugs); see also United States v. Smith,

127 F.3d 1388, 1390 (11th Cir. 1997) (“[§ 2D1.1(b)(1)] is to be applied whenever

a firearm is possessed during conduct relevant to the offense of conviction.”).

AFFIRMED.