United States v. Reitilly Fuentes Ramos

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 21, 2019
• Docket: 18-11916
• Status: Unpublished

Opinion

Case: 18-11916 Date Filed: 03/21/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11916 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-20833-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REITILLY FUENTES RAMOS,

Defendant-Appellant.

________________________

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

(March 21, 2019)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-11916 Date Filed: 03/21/2019 Page: 2 of 6

Reitilly Fuentes Ramos challenges his sentence for possession with intent to

distribute 50 grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). He argues that the district court improperly applied a two-level

enhancement for possession of a dangerous weapon in relation to a drug offense,

pursuant to U.S.S.G. § 2D1.1(b)(1). For the following reasons, we affirm.

After entering a guilty plea, at the sentencing phase of his case Ramos

objected to the Presentence Investigation Report’s inclusion of the two-level

dangerous weapon enhancement under U.S.S.G. § 2D1.1(b)(1). At Ramos’s

sentencing hearing, the DEA agent involved in the investigation testified to the

following facts, which Ramos confirmed were true and correct. Law enforcement

initially contacted Ramos through a confidential informant. That informant met

with Ramos at Ramos’s residence to discuss the purchase of methamphetamine,

which Ramos sold to the informant. During the transaction, the informant

observed what appeared to be a firearm in plain view on top of a dresser in an

adjacent room. Ramos later moved his residence to a new location and sold the

informant methamphetamine there on two occasions. During both of those

transactions, the informant again saw what appeared to be a firearm in an adjacent

room. A few days later, law enforcement officers searched Ramos’s residence,

finding methamphetamine, cocaine, and drug-trafficking paraphernalia such as a

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digital scale and empty baggies. They also found a pellet gun in plain view in the

location described by the informant.

On appeal, Ramos’s argument relies on the facts that there was no evidence

that the pellet gun was loaded, that the gun was kept in a separate room during the

drug transactions, that the gun was not on his person, and that he did not brandish

or gesture toward the pellet gun during the transactions. Ramos contends that his

pellet gun was analogous to an unloaded hunting rifle in a closet—a scenario

which the commentary to the guidelines advises does not trigger the enhancement,

U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A)—and that it was “clearly improbable that the

weapon was connected with the offense[s].” See U.S.S.G. § 2D1.1 cmt. n.11(A).

“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

for clear error, and the application of the Sentencing Guidelines to those facts de

novo.” United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999). “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). “[W]e will not find clear error unless our review of

the record leaves us ‘with the definite and firm conviction that a mistake has been

committed.’” United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003)

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

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The sentencing guidelines provide for a two-level sentence enhancement

when a defendant possesses a dangerous weapon, including a firearm. U.S.S.G.

§ 2D1.1(b)(1). The commentary to § 2D1.1(b)(1) provides that “[t]he

enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense. For example, the

enhancement would not be applied if the defendant, arrested at [his] residence, had

an unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A).

Additionally, the commentary to § 1B1.1—which the commentary to

§ 2D1.1(b)(1) cites for its definitions of “firearm” and “dangerous weapon”—

provides that “[a] weapon, commonly known as a ‘BB’ or pellet gun, that uses air

or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a

firearm.” U.S.S.G. § 1B1.1, cmt. n.1(G) (2016).

Our precedent prescribes the following burden-shifting approach to applying

the dangerous weapon enhancement. Initially, the government must show, 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.” George, 872 F.3d at 1204. We have held that

“proximity between guns and drugs, without more, is sufficient to meet the

government’s initial burden under § 2D1.1(b)(1).” United States v. Carillo-Ayala,

713 F.3d 82, 91 (11th Cir. 2013). Further, a weapon may be “present” at the site of

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the charged conduct regardless of whether it is in the same room where the offense

conduct occurred, as long as it is at the same general location. See United States v.

Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (holding that a weapon was “present”

for the purposes of the § 2D1.1(b)(1) enhancement where the firearm was in the

office of a warehouse, and the cocaine was found in and around the warehouse);

United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (upholding the enhancement

where “the handgun was in the same room with objects ordinarily associated with

the drug trade: scales, a ziplock bag containing cocaine residue, and a large amount

of cash.”); George, 872 F.3d at 1204–05 (upholding the enhancement where the

weapon was found at the front desk of a barbershop, while the offense conduct

occurred in a back room).

“If the government meets this initial burden, the burden shifts to the

defendant, who must show that a connection between the weapon and the offense

was ‘clearly improbable.’” Id. at 1204. Failure to produce such evidence permits a

district court to apply the enhancement without committing clear error. Hall, 46

F.3d at 64.

Here, the district court did not clearly err in imposing the two-level

enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon. A pellet

gun is a dangerous weapon under the plain language of the guideline commentary,

and the government met its initial burden of showing that this dangerous weapon

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was present at the site of the charged conduct. A dangerous weapon in plain view

during the multiple transactions at Ramos’s residences has no other apparent

purpose than to protect the drug supply, and is therefore substantively different

from the example of an unloaded hunting rifle hidden in a closet, as contemplated

in the guidelines commentary. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). Although

Ramos established that there was no evidence that he brandished the weapon or

used it to threaten the confidential source, he did not meet his burden of showing

that it was clearly improbable that there was a connection between the weapon and

the charged offense. Accordingly, we are not left with the “definite and firm

conviction that a mistake has been committed,” White, 335 F.3d at 1319, and

therefore we affirm.

AFFIRMED.