Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 10, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 20-3191 v.
JORGE PORTILLO-URANGA,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Kansas (D.C. No. 2:17-CR-20074-JAR-1) _________________________________
Jonathan Laurans, Kansas City, Missouri, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee. _________________________________
Before TYMKOVICH, Chief Judge, SEYMOUR and EBEL, Circuit Judges. _________________________________
TYMKOVICH, Chief Judge. _________________________________
During a drug trafficking investigation that spanned several years, Drug
Enforcement Administration (DEA) agents utilized judicially authorized wiretaps to
intercept Jorge Portillo-Uranga’s communications. After he was arrested and
charged with drug trafficking crimes, Portillo-Uranga moved to suppress all evidence Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 2
obtained from the wiretaps. He claimed, among other things, that (1) the government
failed to establish its investigative need for the wiretaps, and (2) the interception of
his communications occurred outside the authorizing court’s territorial jurisdiction.
After the district court denied his motion, Portillo-Uranga pleaded guilty but reserved
the right to appeal the denial of the suppression motion. At sentencing, the district
court applied a two-level sentencing enhancement for firearms possession because
DEA agents found firearms and indicia of drug trafficking throughout Portillo-
Uranga’s ranch when they arrested him.
Portillo-Uranga contends the district court erred by denying his motion to
suppress and by applying the sentencing enhancement for firearms possession.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The district court did not
err in finding the government established a need for the wiretaps, and the interception
in Kansas satisfied controlling Tenth Circuit caselaw regarding territorial
jurisdiction. The government also established a nexus between the firearms located
on Portillo-Uranga’s ranch and the drug trafficking charges.
I. Background
In 2012, the DEA launched an investigation into a Kansas City-based drug
trafficking organization that distributed cocaine and marijuana and had ties to a
drug cartel in Guadalajara, Mexico. Through confidential sources, DEA agents
determined that an individual nicknamed “Pelon” or “Pelon Portillo” held a
leadership role within the Kansas City organization. Pelon is defendant Jorge
Portillo-Uranga. 2 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 3
The DEA intended to accomplish several objectives through its
investigation. The agency aspired to learn the identities of key personnel within
the organization as well as its drug suppliers and customers. The DEA also
endeavored to locate the stash locations for drugs and discover how drug
proceeds were distributed. The ultimate goal of the DEA’s investigation was to
obtain “admissible evidence that proves beyond a reasonable doubt” targeted
individuals committed drug trafficking offenses. App., Vol. 9 at 2449.
The investigation occurred in two phases. The main objective of Phase I
was to gather information about the organization’s overall structure and identify
key members. In pursuit of these goals, DEA agents utilized a variety of
investigative techniques, such as confidential sources, controlled purchases,
search warrants, pole cameras, and physical surveillance. Although many of
these methods proved fruitful for the investigation, agents were unable to gather
all the critical information they were seeking, such as the identities of leaders and
supply sources. The agency therefore decided to seek judicial authorization for
the use of wiretaps to intercept communications of targeted individuals. As part
of their wiretap applications, investigating agents submitted affidavits that
described their use of other investigative techniques and explained why wiretaps
were necessary for the investigation.
A federal court in Kansas authorized the interception of wire and electronic
communications of twelve different phones (referred to as Target Telephones #1–
12) during Phase I, which lasted from May 2014 to July 2015. Although Portillo-
3 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 4
Uranga’s personal phones were not subject to any wiretaps during Phase I,
Portillo-Uranga—through his nickname—was listed as a targeted individual in
each Phase I wiretap application. Phase I culminated with the arrest and
successful prosecution of over a dozen members of the organization. But despite
achieving some success in Phase I, the DEA had failed to identify and arrest key
leaders, such as Portillo-Uranga. The DEA therefore launched Phase II of the
investigation, which focused on identifying and targeting leaders of the
organization.
While agents continued using normal investigative techniques in Phase II,
they again sought authorization for wiretaps to aid their investigation. In total,
the DEA received authorization to intercept communications from nineteen
phones (Target Telephones #13–32), 1 most of which were used by Portillo-
Uranga or his main distributor, Jesus Arellanes-Portillo.
The Phase II wiretaps were active from December 2016 until around
August 2017. During that period, agents intercepted over 400 of Portillo-
Uranga’s pertinent telephone conversations. The calls revealed that Portillo-
Uranga—who at that time had not been identified and was still known to the DEA
only by his nicknames—was responsible for facilitating the acquisition and
distribution of at least 70 kilograms of cocaine and 450 kilograms of marijuana.
1 The target subjects had “a history of utilizing pre-paid disposable cellular telephones” that were regularly disconnected or discarded, which is part of the reason why agents had to constantly apply for wiretap authorizations of new phone numbers. See App., Vol. 5 at 1239–40. 4 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 5
In December 2017, DEA agents executed a search warrant at Portillo-
Uranga’s ranch in Teague, Texas. When agents arrived at the property, Portillo-
Uranga fled and hid under a porch. Agents quickly arrested him and identified
him for the first time. During a subsequent search of the property, agents found
handguns, assault rifles, fraudulent identification documents, numerous cell
phones, cash, a ledger that was possibly used to track drug transactions, and a
fuel tank that may have been used to transport drugs.
Portillo-Uranga was charged with eight counts related to his drug
trafficking activities. He moved to suppress evidence obtained from the wiretaps
on multiple grounds. After a hearing, the district court denied the motion.
Portillo-Uranga pleaded guilty—without a plea agreement—to the
following counts: one count of conspiracy to distribute and possess with intent to
distribute cocaine and marijuana; two counts of use of a communication facility
to facilitate a drug trafficking offense; two counts of money laundering; and three
counts of possession with intent to distribute more than 500 grams of cocaine. 2
II. Analysis
Portillo-Uranga contends the district court erred by denying his motion to
suppress and applying the two-level sentencing enhancement for firearms
possession. He claims the district court should have suppressed the wiretap
2 Portillo-Uranga’s guilty plea was later changed to a conditional plea under Fed. R. Crim. Pro. 11(a)(2) so that he could appeal the court’s denial of his motion to suppress. 5 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 6
evidence because (1) the government failed to establish its need for the wiretaps,
and (2) the interception of the calls did not take place within the territorial
jurisdiction of Kansas as required by Title III and the wiretap authorizations.
Portillo-Uranga also contests the district court’s application of the sentencing
enhancement for possession of firearms.
We conclude the government established necessity for the wiretaps,
Portillo-Uranga waived his territorial jurisdiction argument, and the district court
correctly applied the sentencing enhancement.
A. Motion to Suppress
At the district court, Portillo-Uranga argued that the wiretap evidence
should be suppressed on the following grounds: (1) the wiretap tapes were not
timely sealed; (2) the government did not follow proper minimization procedures;
(3) the government did not provide records showing that interception occurred
within Kansas; (4) the government failed to show necessity for the wiretaps; and
(5) proper notice of the intercepted communications was not given to Portillo-
Uranga. The district court rejected each ground and denied the motion to
suppress.
On appeal, Portillo-Uranga raises only the necessity and territorial
jurisdiction arguments as grounds for suppression. We find no error in the
district court’s denial of Portillo-Uranga’s motion.
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1. Necessity
Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
wiretap applications are subject to a necessity requirement that is “designed to
assure that wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime.” United States v.
Foy, 641 F.3d 455, 464 (10th Cir. 2011) (quoting United States v. Kahn, 415 U.S.
143, 153 n.12 (1974)). To obtain judicial authorization for a wiretap, the
government must include in each application “a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
18 U.S.C. §§ 2518(1)(c), 2518(3)(c). Normal investigative procedures include:
(1) standard physical surveillance; (2) questioning witnesses or suspects,
including through grand jury proceedings; (3) search warrants; (4) deploying
confidential informants and undercover agents; (5) pen registers; and (6) trap and
trace devices. Foy, 641 F.3d at 464 (citing United States v. Cline, 349 F.3d 1276,
1280 (10th Cir. 2003)).
“Although the necessity requirement is intended to ensure that wiretaps are
not used in situations where traditional investigative techniques may achieve law
enforcement purposes, we do not require investigating officers to ‘exhaust all
other conceivable investigative procedures before resorting to wiretapping.’” Id.
(quoting United States v. Zapata, 546 F.3d 1179, 1185–86 (10th Cir. 2008)). But
officers need to explain the need for wiretaps with “some degree of specificity”
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and provide facts related to the specific individuals targeted by the wiretap. Id.
(citing Cline, 349 F.3d at 1280–81).
Once a wiretap has been authorized, it is presumed proper and the
defendant bears the burden of proving that a wiretap is invalid. United States v.
Ramirez–Encarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002). If the defendant
successfully challenges the necessity of a wiretap, any evidence seized pursuant
to the wiretap must be suppressed. Id. We review de novo whether 18 U.S.C.
§ 2518(1)(c)’s requirements were satisfied, but we review the conclusion that a
wiretap was necessary for an abuse of discretion. Id. at 1222 & n.1.
Portillo-Uranga claims the government failed to demonstrate necessity in
its affidavits supporting the wiretap applications and the district court erred in
concluding that the wiretaps were necessary. Specifically, Portillo-Uranga
contends that wiretaps were unnecessary because (1) the government’s objectives
had already been achieved when agents applied for the wiretaps; (2) traditional
and less intrusive investigative techniques had been successful; and (3) the
continued use of normal investigative techniques would not have been too
dangerous.
After a careful review of the record, we conclude that the government
provided a full and complete statement in each affidavit explaining why normal
investigative techniques were insufficient to achieve the goals of the investigation
and that the government adequately justified the need for each wiretap.
8 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 9
As an initial matter, it is evident from the record that the government’s
goals had yet to be achieved when the wiretap applications were submitted. The
government’s investigative goals included the following: (1) discovering the full
scope and identification of key personnel involved in the organization; (2)
learning the identities of illegal drug suppliers; (3) uncovering the identity of the
main drug customers; (4) locating the organization’s drug-stash sites;
(5) discovering the management and disposition of proceeds generated by drug
trafficking; and (6) obtaining admissible evidence that proves beyond a
reasonable doubt that the target subjects committed the alleged violations of law
set forth in the affidavits. 3 Although Portillo-Uranga argues the government’s
goals “had already been achieved” when it applied for wiretap authorizations, he
nonetheless concedes that several of the government’s objectives had not been
achieved, such as locating drug-stash sites and determining the disposition of
drug proceeds. See Aplt. Br. at 25–28.
We disagree with Portillo-Uranga that the government’s goals had already
been achieved when agents applied for each wiretap authorization. Although
agents were able to gather some intelligence about the organization and
3 Portillo-Uranga argues that the government’s investigation objectives were “boilerplated generalizations germane to every drug trafficking investigation.” Aplt. Br. at 25. We agree with the district court that the government’s objectives were “legitimate” and “neither overly broad nor illusory.” App., Vol. 16 at 4631; see also Foy, 641 F.3d at 464–65 (“[W]e have held on numerous occasions that the law enforcement goal of uncovering the size and scope of the conspiracy may justify the authorization of wiretaps.”).
9 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 10
individuals through normal investigative techniques, the agents were unsuccessful
in learning key details, such as the identities of targeted personnel and suppliers.
In fact, the DEA did not learn Portillo-Uranga’s true identity until he was arrested
in December 2017—over three years after the first wiretap in the case was
authorized. Though the DEA had learned some information about Portillo-
Uranga’s identity, investigating agents did not know his first name, last name, or
date of birth. The government’s inability to gather such information despite years
of using traditional investigative techniques and wiretaps highlights why agents
thought the initial and continued use of wiretaps was necessary to achieve their
goals.
In addition to describing why their goals had yet to be achieved, the
government agents explained with specificity why normal investigative
techniques were inadequate to accomplish their investigative goals. Each
affidavit includes a list of the investigative techniques that had been used or
considered up to that point in the investigation. For instance, in the affidavit
supporting the DEA’s first application for a wiretap in May 2014, the affiant
explained how the investigating agents had (1) employed four confidential
sources to infiltrate the drug organization; (2) conducted three controlled drug
purchases; (3) used physical surveillance to observe suspects; (4) installed a pole
camera near a potential drug trafficking location; (5) tracked suspects through
GPS location data; (6) executed search warrants to obtain cell-site location
information for target subjects; (7) spoken directly with a suspect in an attempt to
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gain his cooperation; (8) used trap and trace devices, pen registers, and toll
record analysis to generate a list of phone numbers contacted by target subjects;
and (9) initiated a financial investigation to examine tax, banking, and real estate
records of target subjects.
In the same affidavit, the affiant meticulously described the ways in which
each technique had been successful as well as the disadvantages of each
technique compared to a wiretap. The affiant also explained why the use of other
techniques, such as undercover agents, grand juries, interviews, trash searches,
and mail covers, were unlikely to be successful if used. In one section, the
affiant describes why a wiretap was needed to intercept the communications of
Edwin Pacheco, a drug distributor. The affiant explains how a confidential
source had been unable to meet or negotiate with Pacheco directly despite being
trusted by Pacheco’s underling. As a result, the confidential source could not
gather information about Pacheco’s drug supply sources. Based on this
experience and the fact that the organization was “extremely tight-knit and
cohesive,” App., Vol. 5 at 1228, the affiant concludes that the use of confidential
sources or undercover agents would be unlikely to achieve the government’s goal
of identifying leaders, the location of drug-stash sites, and sources of supply.
All the affidavits also describe why certain investigative techniques, such
as interviews of key personnel, would be futile or too dangerous to employ.
Before the government applied for any wiretap authorizations, a DEA agent
arrested a low-level drug supplier named Jairo Escobar, who worked for Oscar
11 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 12
Aguilera, a key supplier in the target network. Escobar agreed to cooperate with
the agent and called Aguilera while under DEA observation to order more drugs.
When it became clear during the phone call that Aguilera believed Escobar had
been arrested, the agent picked up the phone and attempted to convince Aguilera
to cooperate. Aguilera said that he was willing to cooperate, but this turned out
to be a lie. Several days later, Escobar reported that Aguilera’s associates had
driven by Escobar’s house and made threats against Escobar for cooperating with
the agents. This incident and other similar facts included in the affidavits
underscore why normal investigative techniques such as interviews would be
unlikely to achieve the government’s investigative goals or too risky to employ.
The DEA continued using many of the same traditional investigation
techniques after it received authorization to use wiretaps. Each subsequent
affidavit filed in support of an additional wiretap or an extension of an existing
wiretap included a similar list of traditional investigative techniques as the
affidavit supporting the first wiretap. When agents used additional confidential
sources or executed a search warrant, they added that information in their wiretap
affidavits to show that they continued to utilize traditional investigative
techniques but that a wiretap was still necessary to achieve the investigation
goals. See, e.g., App., Vol. 9 at 2601–03 (affidavit in support of wiretap
application for Target Telephones #14–16 describing additional surveillance that
had been conducted since the authorization of Target Telephone #13 wiretap).
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Based on our review of the wiretap applications, we conclude the
government provided in each affidavit “a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
18 U.S.C. § 2518(1)(c). Although normal investigative techniques had achieved
limited success during the investigation, the DEA agents adequately explained in
each affidavit why wiretaps were necessary. The district court thus did not abuse
its discretion in concluding that the government established necessity for the
wiretaps.
2. Territorial Jurisdiction
Portillo-Uranga next claims the wiretap evidence should be suppressed
because interception occurred outside the territorial jurisdiction of Kansas.
Under Title III, a judge may only authorize the interception of communications
“within the territorial jurisdiction of the court in which the judge is sitting.” Id.
§ 2518(3). 4 Although Title III does not specify where interception takes place,
we have held that “interception occurs both where the tapped telephone is located
and where the intercepted communications are first heard by law enforcement
officials.” United States v. Dahda, 853 F.3d 1101, 1112 (10th Cir. 2017), aff’d,
138 S. Ct. 1491 (2018). Portillo-Uranga argues that the interception of his
4 There is a statutory exception to this rule—a court may authorize the interception of communications “outside [its] jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction.” 18 U.S.C. § 2518(3). 13 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 14
communications exceeded the territorial jurisdiction of the authorizing court
because the tapped phones were located outside of Kansas and the calls were
routed to the DEA’s office in Kansas through its division office in Missouri.
Having reviewed the district court proceedings, we conclude that Portillo-
Uranga waived this argument because he never presented it to the district court
and failed to raise it in his opening brief. 5
In his motion to suppress, Portillo-Uranga presented a territorial
jurisdiction argument, but he did not present the specific argument he raises on
appeal. This constitutes waiver. See United States v. Dewitt, 946 F.2d 1497,
1502 (10th Cir. 1991) (“[W]aiver . . . applies not only to the failure to make a
pretrial motion, but also to the failure to include a particular argument in the
motion.”). In his motion, Portillo-Uranga argued only that the government failed
to provide records to show that interception occurred within the territorial
jurisdiction of the court and thus “Defendant is unable to assess whether the
Government has abided by its promise to only intercept telephone calls in
Kansas.” App., Vol. 1 at 65–66. Portillo-Uranga did not contend that
interception occurred outside Kansas—he merely argued that he needed more
information to determine where the calls were intercepted.
5 Because we deem this argument waived, we need not consider the government’s surreply brief responding to the plain-error argument made by Portillo-Uranga in his reply brief. We therefore deny the government’s motion for leave to file its surreply brief. 14 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 15
At the suppression hearing, a DEA agent testified that during the
investigation, the DEA’s listening post was always located in Kansas. The agent
also explained that calls were routed through the DEA’s division office in
Missouri to the Kansas office where agents would listen to the live conversations.
On appeal, Portillo-Uranga argues this relay process means that the calls were
intercepted in Missouri, not Kansas. But Portillo-Uranga never made this
argument before the district court, even though he had an opportunity to do so at
the suppression hearing. Before ending the hearing, the district court explained
that further argument was not necessary “unless there’s something that’s
developed during today’s hearing that you want me to focus on.” App., Vol. 21
at 5552. Portillo-Uranga’s counsel declined to present any additional arguments,
telling the court that he would “submit it on the briefs.” Id.
We may consider an argument not raised below under the plain-error
standard. Fed. R. Crim. P. 52(b); United States v. Denogean, 79 F.3d 1010, 1012
(10th Cir. 1996). But we typically only consider the argument if the appellant
argues for plain-error review in his opening brief. United States v. Leffler, 942
F.3d 1192, 1197 (10th Cir. 2019) (“[W]e generally do not consider arguments
made for the first time on appeal in an appellant’s reply brief and deem those
arguments waived.”). Although we have discretion to “consider a plain-error
argument raised for the first time in a reply brief, we are not required to do so.”
Id. at 1200.
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Portillo-Uranga failed to preserve his territorial jurisdiction argument
despite having multiple opportunities to raise it before the district court. He also
did not argue for plain-error review on appeal until after the government asserted
waiver in its response brief. At both the trial court and on appeal, Portillo-
Uranga was represented by counsel, which weighs in favor of finding waiver. See
id. at 1199 (“We also might be willing to overlook Defendant’s failure to argue
for plain error in his opening brief if Defendant was proceeding pro se on
appeal. . . . But in this case Defendant was represented by counsel at trial and is
represented by counsel on appeal.”). We thus deem the argument waived. 6
* * *
For these reasons, we affirm the denial of Portillo-Uranga’s motion to
6 Even if the argument was forfeited and not waived, Portillo-Uranga would still not prevail because he has not shown that the district court’s decision was plainly erroneous. The district court concluded that all interceptions took place within the court’s territorial jurisdiction because the intercepted communications were first heard by agents at their listening post in Kansas. That conclusion is consistent with our precedent and thus does not constitute plain error. We have held that a communication is intercepted for purposes of § 2518(3) either “where the tapped telephone is located” or “where the contents of the redirected communication are to first be heard.” United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (quoting United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992)). Because the DEA agents first heard the intercepted communications at their listening post in Kansas, the district court did not err—let alone plainly err—by concluding that all communications were intercepted within its territorial jurisdiction. 16 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 17
B. Sentencing Enhancement
Portillo-Uranga also challenges the district court’s imposition of a two-
level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a
firearm. He argues the government failed to meet its burden to show that the
firearms discovered at his property were temporally and spatially connected to his
drug-trafficking activity. We agree with the district court that the two-level
enhancement for firearms possession was appropriate.
“When evaluating the district court’s interpretation and application of the
Sentencing Guidelines, we review legal questions de novo and factual findings
for clear error, giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Mollner, 643 F.3d 713, 714 (10th Cir.
2011) (quoting United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir.
2008)). A two-level sentencing enhancement “should be applied if the weapon
was present, unless it is clearly improbable that the weapon was connected with
the offense.” U.S.S.G. § 2D1.1 app. cmt. n.11(A). The government bears the
initial burden of proving by a preponderance of the evidence that the defendant
possessed a firearm, which may be satisfied by showing “that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and the
defendant.” United States v. Pompey, 264 F.3d 1176, 1180–81 (10th Cir. 2001)
(quoting United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)). Once the
government establishes a nexus, the burden shifts to the defendant to show “that
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it is clearly improbable the weapon was connected with the offense.” Id. (quoting
United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999)).
When DEA agents executed a search warrant at Portillo-Uranga’s ranch in
December 2017, they found eight rifles and nine handguns on the property. In the
master bedroom, agents found a gold M1911 pistol with the initials “J.P.”
engraved on the grip—which the district court presumed stood for Jorge Portillo-
Uranga because it was his bedroom. App., Vol. 17 at 4969. Agents also found an
AR-15 rifle with a scope and 30-round magazine next to a dresser and a container
with cash in the same room. In the master bedroom closet, agents discovered a
safe containing three M1911 pistols, an expense ledger, and seven cell phones.
Agents found more firearms and indicia of drug trafficking in Portillo-
Uranga’s horse barn. A search of the small office inside the barn uncovered two
AK-47 rifles with a 30-round magazine and a drum magazine, as well as another
expense ledger. Agents also discovered a bucket underneath the floor of the barn
that contained fraudulent identification documents and thousands of dollars in
cash. Near the bucket was a large fuel tank with similar features to a fuel tank
described by a witness at the suppression hearing that had been used to smuggle
drugs.
In its presentencing investigation report, the probation office did not apply
a sentencing enhancement for firearms possession because it concluded there was
insufficient information “to establish that the firearms recovered at the
defendant’s property were possessed at the time of and in connection with any
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drug trafficking or money laundering activities.” App., Vol. 20 at 5419. The
government objected to the exclusion of a firearms enhancement, arguing there
was ample evidence to show that Portillo-Uranga’s possession of the firearms
“occurred in close proximity to drug trafficking activity and had the potential to
facilitate drug trafficking activity at the ranch.” Id. at 5431.
At the sentencing hearing, the district court agreed with the government
and applied the enhancement. The district court found that because the firearms
were near Portillo-Uranga’s cash, cell phones, and fictitious identification
documents, as well as a possible drug ledger and fuel tank used for drug
trafficking, there was sufficient evidence that the firearms were possessed in
connection with drug trafficking.
The district court did not clearly err by concluding a temporal and spatial
relation existed between the firearms, drug trafficking activity, and Portillo-
Uranga. Beginning with the spatial relationship, the district court reasonably
concluded that Portillo-Uranga possessed firearms in close physical proximity to
indicia of drug trafficking. Although no drugs were found at Portillo-Uranga’s
property, proximity to actual drugs is not required for a § 2D1.1(b)(1)
enhancement. See United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir.
2002) (proximity to “drug paraphernalia” is sufficient to establish a nexus
between a firearm and a drug offense).
Nearly all the firearms possessed by Portillo-Uranga were discovered in the
vicinity of items likely used to facilitate drug trafficking. For instance, the
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fictitious passports found on the ranch had previously been used by Portillo-
Uranga in furtherance of the drug conspiracy. Similarly, the district court
concluded that the gas tank found in Portillo-Uranga’s horse barn had likely been
used to “secrete money or drugs” because one of Portillo-Uranga’s drivers had
previously been caught by law enforcement using a similar gas tank for such
purposes. App., Vol. 17 at 4970. It was therefore reasonable for the district
court to apply the sentencing enhancement based on the close proximity between
firearms and items used to facilitate drug trafficking.
We also find that a temporal nexus existed because Portillo-Uranga
possessed the firearms near indicia of drug trafficking while actively participating
in a drug trafficking conspiracy. 7 See United States v. Humphrey, 208 F.3d 1190,
1210 (10th Cir. 2000) (“[I]n a drug conspiracy conviction the [firearm
possession] adjustment should be applied unless it is clearly improbable that the
weapon was connected with the conspiracy offense.”), abrogated on other
grounds by Arizona v. Gant, 556 U.S. 332 (2009).
7 The district court found a temporal nexus based on an April 2017 event where a drug runner brought drugs to the ranch for Portillo-Uranga’s inspection prior to distribution. But the government did not provide any evidence to show that weapons were present at the ranch in April 2017. The drug inspection therefore does not establish a temporal and spatial relation between Portillo-Uranga, his drug trafficking activity, and the firearms. But we may affirm on any ground so long as it is supported by the record. Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). Here, the evidence shows that the drug-trafficking conspiracy led by Portillo-Uranga was ongoing when the DEA agents executed the search warrant and discovered the firearms and drug trafficking items. 20 Appellate Case: 20-3191 Document: 010110655215 Date Filed: 03/10/2022 Page: 21
Portillo-Uranga may overcome this evidence if he can show “it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1
app. cmt. n.11(A). But he has failed to do so here. On appeal, he challenges only
the district court’s conclusion that the government satisfied its burden. He does
not point to any evidence suggesting that the caches of firearms found during the
raid of his property were unconnected to his drug trafficking offenses.
Because Portillo-Uranga possessed a firearm in the vicinity of drug
trafficking activity, the district court appropriately applied a two-level
enhancement under § 2D1.1(b)(1).
III. Conclusion
For these reasons, we AFFIRM the district court’s denial of Portillo-
Uranga’s motion to suppress and AFFIRM the court’s application of a two-level
sentencing enhancement for possession of firearms.