United States v. Joaquin Rivero

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 14, 2024
• Docket: 23-10923
• Status: Unpublished

Opinion

USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 1 of 20

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-10646 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOAQUIN RIVERO,

Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:98-cr-00023-JAL-2, 1:00-cr-00220-JAL-1 USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 2 of 20

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No. 23-10923 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOAQUIN RIVERO,

Appeals from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:00-cr-00220-JAL-1, 1:98-cr-00023-JAL-2 ____________________

Before WILSON, ROSENBAUM, and GRANT, Circuit Judges. PER CURIAM: USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 3 of 20

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Defendant-Appellant Joaquin Rivero appeals his 168-month sentence for conspiracy to possess with intent to distribute cocaine, contempt of court, and failure to appear. Rivero argues that the government violated a term of his plea agreement. According to Rivero, the district court also erred in applying a firearms enhance- ment and denying safety-value relief, and his sentence is unreason- able. After careful review, we affirm. I. In 1998, a federal grand jury charged Rivero with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and possession with intent to dis- tribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2). After pleading not guilty, the court released Rivero on bond. Pursuant to a written plea agreement, Rivero agreed to plead guilty to Count 1 with the understanding that the govern- ment would seek dismissal of Count 2 at the time of sentencing. In the agreement, he agreed to forfeit $37,700 found in his home be- cause the money “constitute[d] or was derived from proceeds, ob- tained directly or indirectly, as a result of a violation of 21 U.S.C. §§ 846 and 841(a)(1), and/or was used or intended to be used to commit or to facilitate the commission of the said violation.” The plea agreement also included that the government would recom- mend safety valve relief if Rivero was found to not “have possessed a firearm or other dangerous weapon in connection with the of- fense.” At the change-of-plea hearing, the district court placed USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 4 of 20

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Rivero under oath, and Rivero confirmed that (1) he understood the charge against him, (2) the prosecutor’s facts of the case were correct, and (3) he did not have any changes to the facts. Relevant to this appeal, drug task force officers observed drugs being moved from a Cadillac to another car in a parking lot.1 Officers then identified the address to which the Cadillac was reg- istered, surveilled the address, and watched Rivero drive away from the address in the Cadillac. The officers stopped Rivero, and he consented to the search of his residence. During the search, agents found additional kilograms of cocaine in a storage shed be- hind Rivero’s residence. In the storage shed with the cocaine, the agents found scales, drug packaging materials, drug mixing agents, and other paraphernalia having to do with drug distribution. The agents also found $37,700 in his house and four guns in a bedroom drawer in his house. Rivero was arrested. He subsequently told the agents that he possessed the cocaine for about four to five days and that it had been brought to his house by a person known to Rivero as “Ger- man” with instructions for Rivero to hold the cocaine until con- tacted. Rivero confirmed that he gave 14 kilograms of cocaine to another person. He told the agents that the cocaine paraphernalia and scales found in the shed on his property belonged to him and that he had been involved with distributing cocaine for about 1 to

1 The officers continued surveilling the car until two people got into the car

and left. The officers pulled over the vehicle and those in the car consented to a search of the car, which contained 14 kilograms of cocaine. USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 5 of 20

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1½ years. He also stated that he had been told he would be given $300 per kilogram for holding the cocaine at his residence. After discussing the forfeiture and possible safety-valve re- lief, Rivero confirmed that: the plea agreement was read to him before he signed it; he signed it; he fully discussed the agreement with his attorneys before signing it; he understood all the terms of the agreement before signing it; and the terms summarized by the court were the terms of his plea agreement with the government as he understood them. The government recommended that Rivero remain on bond pending sentencing, which the court al- lowed. A presentence investigation report (1998 PSI) indicated the application of a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based on the four firearms found in his house. The 1998 PSI also found Rivero ineligible for safety-valve relief under U.S.S.G. § 5C1.2. Rivero objected to the two-level enhancement, saying there was no connection to the offenses that he committed because all the drugs and drug paraphernalia were found in a shed in the back of his residence that was detached from his house and that the weapons were found in his bedroom. He stated that, when he entered into the plea agreement, both parties contemplated that he would receive the benefits of the safety valve, as shown by the language in the plea agreement. The government opposed. At his sentencing hearing in June 1998, Rivero failed to ap- pear, and a warrant was issued for his arrest. In March 2000, a fed- eral grand jury charged Rivero in a new indictment with contempt USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 6 of 20

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of court, in violation of 18 U.S.C. § 401(3), and failure to appear, in violation of 18 U.S.C. § 3146. For over twenty years, Rivero lived in Costa Rica. But in February 2020, Rivero was arrested while traveling through an air- port in Panama City, Panama. He was returned to the Southern District of Florida where he first pled not guilty to the 2000 indict- ment. But without a plea agreement as to the 2020 charges, Rivero later agreed to pled guilty to both counts, and the district court ac- cepted his plea. The cases were consolidated for sentencing pur- poses. The new PSI (2020 PSI) described the conduct underlying the 1998 conviction as detailed above but expanded on where the money was found in Rivero’s house and clarified that the shed where the cocaine was found had been unlocked. Additionally, the 2020 PSI said that officers found four handguns: a Smith & Wesson semi-automatic firearm with a clip and 12 nine-millimeter bullets; two .38 caliber Smith & Wesson firearms and two brown holsters; and a .38 caliber long barrel Rossi firearm in a dresser in Rivero’s master bedroom. The 2020 PSI also detailed Rivero’s fleeing from Florida, his over twenty years in Costa Rica, and his arrest in the Panama City airport. Like the 1998 PSI, the 2020 PSI stated that Rivero was not eligible for the safety-valve reduction because he was found in pos- session of four firearms at his residence, which is also where drugs and paraphernalia were stored. Based on a total offense level of 36 USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 7 of 20

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and a criminal history category of I,2 Rivero’s guideline imprison- ment range was 188 to 235 months. Pursuant to U.S.S.G. § 2J1.6, if sentencing for the 2000 indictment was imposed on the failure to appear conviction, it must run consecutively to any other sentence of imprisonment. As he had done in 1998, Rivero again objected to the state- ment that he was not eligible for safety-valve relief. He objected to the two-level enhancement based on the four firearms. He re- quested a downward variance and a 26-month term of imprison- ment because he had a low criminal history score, was raised in an orphanage in Cuba, was a father to four children, was low risk for recidivism, was 86 years old, and suffered from multiple serious health conditions. The court held three separate sentencing hearings. At the first one, Rivero sought to correct several alleged factual errors in his 1998 PSI to which he had agreed in his plea agreement and dur- ing his 1998 change‑of‑plea hearing. The government argued that he was precluded from doing so. At the second hearing, the district court found that prece- dent precluded it from considering facts conflicting with state- ments made during the 1998 Rule 11 guilty plea colloquy and con- tained in the plea agreement. The court found that his objections

2 Starting with a base offense level of 32, the 2020 PSI added a two-level en-

hancement for possession of firearms and two levels for willfully obstructing justice. USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 8 of 20

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to the facts previously admitted in the Rule 11 guilty plea colloquy and contained in the plea agreement lacked merit. The govern- ment did not need to present evidence because those facts were admitted by Rivero—the $37,700 recovered in the house was drug proceeds. At the third hearing, the district court heard arguments on Rivero’s objection to the firearms enhancement, again highlighting the location of both the drugs (the shed) and guns (master bed- room). The court found that the government met its initial burden to show that Rivero possessed guns based on the factual proffer at the 1998 Rule 11 hearing and the undisputed PSI findings that there were four firearms present at the site of the charged conduct. After considering Rivero’s arguments, the court found that Rivero did not meet the burden required to demonstrate that a connection be- tween the four firearms and the offense was clearly improbable. The court next heard arguments on the safety-valve objec- tion. Rivero again argued that his participation in the offense did not involve guns and that there was no evidence in the record that the guns were actually possessed in connection with the case or used during the case. The government argued that it was still prob- able that the guns were used in connection with the charged con- duct for protection of the cash and the property generally where the drugs were stored. The court admitted that “it [was] a difficult question,” but found it probable that the guns possessed by Rivero were possessed in connection with the offense. The district court stated that “[t]he USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 9 of 20

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drugs were found on the property in the shed. This was his resi- dence, the total property, and he has admitted that the cash was from trafficking. I have no choice [but] to say that he does not qualify for the safety valve.” After confirming Rivero’s guideline range was 188 to 235 months, the court heard from Rivero where he allocuted and apol- ogized for absconding. The government recommended a sentence of 200 months’ imprisonment and emphasized that Rivero chose to flee rather than accept responsibility for his actions in 1998. The court sentenced Rivero to 168 months total imprison- ment, 162 months attributed to the drug trafficking offense and 6 months each for the failure to appear and criminal contempt of court offense, to run consecutively to the 1998 count and concur- rently with each other. The court said that it considered the 18 U.S.C. § 3553(a) factors and the facts and circumstances of Rivero’s case, as well as Rivero’s history and characteristics, the nature and circumstances of Rivero’s offense. Rivero timely appealed. II. Rivero first argues that the government violated a term of the plea agreement when it argued that he was not safety-valve el- igible under 18 U.S.C. § 3553(f)(2) and U.S.S.G. § 5C1.2(a)(2). Sec- ond, he argues that the district court erred in determining that U.S.S.G. § 2D1.1(b)(1)’s firearms enhancement applied to his drug offense level. Third, he argues that the district court erred in deny- ing safety‑valve relief pursuant to 18 U.S.C. § 3553(f)(2) and U.S.S.G. § 5C1.2(a)(2). Fourth, he argues that his 168-month total USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 10 of 20

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sentence is unreasonable. We will address each of his challenges in turn. A. To begin, the government contends that Rivero’s argument that the government breached the plea agreement is subject to plain error review because he failed to object before the district court. While we ordinarily review the alleged breach of a plea agreement de novo, the government is correct in that we review only for plain error if the issue was not raised below. United States v. Malone, 51 F.4th 1311, 1318 (11th Cir. 2022). Rivero asserts that he properly raised the objection, but a review of the record belies that argument. Although Rivero argued against the enhancement and in support of safety-valve relief, he never argued to the district court that the government breached the plea agreement or asked to hold the government to its promise. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (ex- plaining the defendant cannot preserve an argument by raising facts underlying the argument if the facts were presented under a different legal theory). Thus, plain error applies and occurs where there is: “(1) an error (2) that is plain and (3) that has affected the defendant’s sub- stantial rights; and if the first three prongs are met, then a court may exercise its discretion to correct the error if (4) the error seri- ously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013) (quotations omitted and alterations adopted). We have USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 11 of 20

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held that the government’s failure to abide by the plain text of a plea agreement can satisfy the first two prongs of the plain error test. See Malone, 51 F.4th at 1321. Here, we find that no plain error occurred when the govern- ment refused to recommend that Rivero receive safety-valve relief. Rivero’s case is similar to our decision in United States v. Mahique. 150 F.3d 1330 (11th Cir. 1998). There, the government “agreed not to oppose Mahique’s request to be sentenced under the safety- valve provision ‘if he is eligible, and the Court makes appropriate findings regarding the criteria.’” Id. at 1331. But at sentencing, the government opposed the safety valve relief because Mahique fled the jurisdiction and retracted several admissions he made during his prior confession, and we found that “[t]he government did not breach the plea agreement.” Id. at 1331–32. The government’s promise in the plea agreement not to oppose Mahique’s request to be sentenced under the safety-valve provision was conditioned on him being eligible for the provision and the district court finding that he met all criteria for application of the provision. Id. at 1332. Here, the agreement said that the parties would jointly rec- ommend safety-valve relief provided that Rivero was not found “to have possessed a firearm or other dangerous weapon in connection with the offense.” Although the language in this plea agreement differs somewhat from the agreement in Mahique, the recommen- dation of safety-valve relief was conditional on Rivero not having been found to possess a firearm in connection with his offense. And here, both probation via the 2020 PSI and the district court USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 12 of 20

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found Rivero possessed a firearm, so the government was not re- quired to make the recommendation for safety-valve relief. Thus, it was not plain error for the district court not to find that the government breached the plea agreement by arguing against safety-valve relief. B. “Whether a defendant possessed a firearm for purposes of § 2D1.1(b)(1) is a factual finding that we review under the clear- error standard.” United States v. George, 872 F.3d 1197, 1204 (11th Cir. 2017). For a finding to be clearly erroneous, we “must be left with a definite and firm conviction that a mistake has been com- mitted.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotation marks omitted). The Sentencing Guidelines provide for a two-level enhance- ment in drug cases “[i]f a dangerous weapon . . . was possessed.” U.S.S.G. § 2D1.1(b)(1). The commentary for § 2D1.1(b)(1) pro- vides 3 that “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was

3 We have held that a sentencing court may consider the Sentencing Commis-

sion’s interpretation of a Guideline as contained in the Commentary to the extent that a Guideline is “genuinely ambiguous.” United States v. Dupree, 57 F.4th 1269, 1274 (11th Cir. 2023) (en banc). Neither Rivero nor the United States makes any argument about whether the Guideline is ambiguous or whether the district court properly relied on the commentary in applying this enhancement. Thus, we leave whether U.S.S.G. § 2D1.1(b)(1) is ambiguous for another day. See United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc). USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 13 of 20

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connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at the defendant’s resi- dence, had an unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1, comment. (n.11(A)). “To justify a firearms enhancement, the government must either establish by a preponderance of the evidence that the firearm was present at the site of the charged conduct or prove that the defendant possessed a firearm during conduct associated with the offense of conviction.” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). We have recognized that close proximity between weapons and drugs alone is sufficient for the government to meet its initial burden under § 2D1.1(b)(1). United States v. Carillo-Ayala, 713 F.3d 82, 91–92 (11th Cir. 2013). The presence of the weapon cannot be merely coincidental, and it must have some purpose or effect to the offense. George, 872 F.3d at 1204. Evidence that a de- fendant used or could have used a weapon to protect his criminal activity is sufficient to show a connection between the weapon and the offense and will thus satisfy the government’s burden under § 2D1.1(b)(1). See Carillo-Ayala, 713 F.3d at 92. If the government meets its initial burden, the burden shifts to the defendant, who has the opportunity to show that a connec- tion between the weapon and the offense was “clearly improba- ble.” Stallings, 463 F.3d at 1220. Failure to produce such evidence permits a district court to apply the enhancement. United States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per curiam). The guidelines impose a heavy burden to negate the connection and show that it USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 14 of 20

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is clearly improbable. Carillo-Ayala, 713 F.3d at 90; U.S.S.G. § 2D1.1, comment. (n.11(A)). Here, the district court did not err in imposing a firearm en- hancement under § 2D1.1(b)(1). First, Rivero kept guns at his house, and he received and stored drugs on the property—in the shed, based on the search of his property and his objections to the PSI—on which the house was located. The guns were also found near the money that Rivero admitted was drug proceeds. Rivero also said that he received several kilograms of cocaine at his prop- erty from German. Then on the day of his arrest, Rivero, at the direction of German, removed 14 kilograms of cocaine from his property and delivered it to German. The record shows that Rivero kept both drugs and drug money on the same premises as his guns. This evidence alone was sufficient for the government to meet its burden under § 2D1.1(b)(1) by showing the guns were located at the site of the offense conduct. Although Rivero argues that the house and the shed are distinct locations, this argument is unavailing because he could have used the firearms in his house to protect the drugs or the drug money on his property, regardless of whether they were located in the house. Carillo–Ayala, 713 F.3d at 94–95. We have also rejected a similar argument and affirmed the same enhance- ment (1) where a firearm found in the office area of a warehouse was present at the site of the conduct, (2) when cocaine was found “nearby in and around the warehouse” and (3) where drug USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 15 of 20

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transactions took place on warehouse premises. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998). Next, the district court did not err in finding that Rivero failed to show that a connection between the guns and the cocaine was clearly improbable. Again, despite the drugs being kept in the shed, Rivero admitted that the cash was drug proceeds which was kept near the guns. So it is not clearly improbable that the guns were kept to protect the drug proceeds. And although Rivero as- serts that he possessed the guns before his involvement in drug traf- ficking, he still failed to show why he would not also keep them to protect the drugs or drug money on his property. 4 See id. Thus, the district court did not err in applying the two-level firearm enhancement. C. A district court’s factual findings and subsequent denial of safety-valve relief are reviewed for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). For an offense violating 21 U.S.C. § 841, the safety-valve pro- visions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 enable a district court to disregard the statutory minimum sentence if five require- ments are met. Relevant here, the second requirement for

4 Rivero also argues that the government’s return of the firearms to him shows

that it did not think the guns had a connection to Rivero’s drug trafficking. But as the government notes, it was hard to verify the accuracy of this state- ment twenty-five years later. USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 16 of 20

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safety-valve relief is that the defendant did not possess a gun “in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). Rivero has the burden of showing that he meets the five factors for relief by a preponderance of the evidence, and that it is more likely than not that he did not possess a firearm in con- nection with the offense. See Carillo-Ayala, 713 F.3d at 90. In considering the safety-valve, this court has held that “[a] firearm found in close proximity to drugs or drug-related items simply ‘has’—without any requirement for additional evidence— the potential to facilitate the drug offense.” Id. at 92. “A defendant seeking relief under the safety valve, despite his possession of a weapon found in proximity to drug-related items, will have a diffi- cult task in showing that, even so, there is no connection with the drug offense so the safety valve applies.” Id. We also explained that: [w]hile other facts, such as whether the firearm is loaded, or inside a locked container, might be relevant to negate a connection, there is a strong presumption that a defendant aware of the weapon’s presence will think of using it if his illegal activities are threatened. The firearm’s potential use is critical. The Sentencing Commission gives special status to guns found in proximity to drugs. Id. “[N]ot all defendants who receive the enhancement under § 2D1.1(b)(1) are precluded from” safety-valve relief. Id. at 91. If the enhancement applies but the defendant also seeks safety-valve USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 17 of 20

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relief, “the district court must determine whether the facts of the case show that a connection between the firearm and the offense, though possible, is not probable.” Id. (quotation marks omitted). But “[t]he number of defendants who meet both guidelines will un- doubtedly be rare.” Id. Here, the district court correctly made individual findings and addressed the different standards for the § 2D1.1(b)(1) en- hancement and § 5C1.2(a)(2)’s safety-valve relief. The district court also noted that the question of whether safety-valve relief ap- plied was a difficult one. Thus, the district court did not clearly err in finding that Rivero failed to meet this burden. In attempting to establish that he did not possess a firearm “in connection with” the charged drug offenses, Rivero largely repeats the arguments used in opposition to the firearm enhancement. Rivero points to the guns being inside his bedroom away from where the drugs were found (in the shed) and that he had possessed the firearms for years before he began his drug activities. Although the burden is lower, these arguments still fall short for reasons explained above. Even though Rivero has pointed to some evidence that might call into question the presence or purpose of his firearm, he has not shown that it is “more likely than not” that firearms found in his bedroom near the money from his drug proceeds was not possessed “in connection with” his drug sales. The district court reiterated Rivero’s admission that the money found in his bedroom was the proceeds of drug trafficking. USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 18 of 20

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It is a permissible view of the evidence that Rivero possessed the gun in part to protect himself and his drug proceeds and that the gun was thus possessed in connection with the offense. See United States v. Smith, 821 F.3d 1293, 1302 (11th Cir. 2016) (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” (quotation marks and alteration omitted)). Because the guns were found in a house where drugs and money were also found on the property, the record does not leave us with “a definite and firm conviction that a mistake has been committed” by the district court in denying Rivero safety-valve re- lief. See Rodriguez-Lopez, 363 F.3d at 1137. D. When reviewing the procedural and substantive reasonable- ness of a sentence, we apply a deferential abuse-of-discretion stand- ard. Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a sentence is procedurally reasona- ble, we ask whether “the district court: (1) properly calculated the Guidelines range; (2) treated the Guidelines as advisory; (3) consid- ered the 18 U.S.C. § 3553(a) factors; (4) did not select a sentence based on clearly erroneous facts; and (5) adequately explained the chosen sentence.” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). We will consider a sentence substantively unreasonable only if “we are left with a definite and firm conviction that the dis- trict court committed a clear error of judgment in weighing the USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 19 of 20

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§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quota- tion marks omitted). A district court abuses its discretion when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in con- sidering the proper factors.” Id. at 1189 (quotation marks omitted). “A sentence imposed well below the statutory maximum penalty is an indicator of a reasonable sentence.” United States v. Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014). As discussed above, the district court did not err in calculat- ing Rivero’s sentence. The court also treated the guidelines as ad- visory, considered the 18 U.S.C. § 3553(a) factors, did not select a sentence based on clearly erroneous facts, and adequately ex- plained the chosen sentence. Therefore, Rivero’s sentence is not procedurally unreasonable. Rivero fails to meet his burden to show that his 168-month total sentence is substantively unreasonable as the district court did not abuse its discretion in weighing the § 3553(a) factors, including the relevant offense conduct and conduct surrounding his obstruc- tion of justice enhancement. Further, Rivero’s sentence was below the Guidelines range and the statutory maximum penalty. III. As a result, the government did not breach Rivero’s plea agreement. Under the plain error standard, Rivero cannot show USCA11 Case: 23-10646 Document: 56-1 Date Filed: 05/14/2024 Page: 20 of 20

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that the government failed to abide by the plain text of the agree- ment regarding the safety-valve recommendation. Next, the dis- trict court did not clearly err in applying the two-level firearm en- hancement because the guns were found in the house with the money that Rivero admitted constituted drug proceeds and illegal drugs were found on the same property. Additionally, the court did not clearly err in finding that Rivero did not qualify for safety- valve relief because it was probable that Rivero possessed guns in connection with his offense conduct. Lastly, Rivero’s total sen- tence is neither procedurally nor substantively unreasonable. Thus, we affirm Rivero’s convictions and sentences. AFFIRMED.