United States v. Tobanche , 643 F. App'x 781 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
March 29, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 15-2111
(D. N.M.)
v. (D.C. No. 1:13-CR-02642-JB-1)
LUIS ANTHONY TOBANCHE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit
Judges. **
Luis Anthony Tobanche pleaded guilty in 2014 to being a felon in
possession of a firearm and agreed to removal from the United States. At
sentencing, Tobanche challenged the district court’s application of a four-level
enhancement under section 2K2.1(b)(6)(B) of the United States Sentencing
Guidelines for using or possessing a firearm in connection with another felony.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
Per the court’s March 10, 2016, Order, this case was submitted on the
briefs.
He argued there was insufficient evidence to tie him to any felony, and so the
enhancement could not be applied.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district
court’s sentence. The evidence plainly showed Tobanche had access to and
control of a car containing a firearm and methamphetamine.
I. Background
Tobanche drove himself and two others to the Sandia Casino in
Albuquerque, New Mexico. Upon arrival, the three rummaged through the car for
sixteen minutes, and then began walking toward the casino elevators. At that
time, another car pulled into a spot nearby. Tobanche was walking toward the
second vehicle when someone inside the car shot Tobanche in the neck.
Tobanche ran to the elevators, pulled out a handgun, and pointed it at the second
vehicle. The vehicle sped off and the three men went into the casino elevator.
Casino surveillance showed Tobanche holding a silver handgun in his right hand,
which he then passed to one of his companions. Police were dispatched to the
casino and Tobanche was transported to a hospital.
The police eventually retrieved the handgun from Tobanche’s companion.
Forensic examination showed that the gun’s trigger had been pulled, but that the
gun had failed to fire. The police then searched the car Tobanche had driven and
found a black glove in the open speaker cone of a large speaker that took up most
of the vehicle’s back seat. The glove contained a plastic bag with 105 grams of
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pure methamphetamine. The search also uncovered a shotgun under the car’s
hood, as well as a pistol in the trunk. An examination revealed Tobanche’s palm
print on the shotgun. Tobanche was then arrested for being a felon in possession
of a firearm.
Although originally charged with both being a felon in possession and
illegal reentry after deportation, the government dropped the latter charge after
Tobanche agreed to plead guilty to the firearm charge. In the Presentence Report,
“(PSR)” the United States Probation Office suggested a four-level enhancement
because Tobanche possessed a firearm in connection with another felony.
Tobanche objected to the enhancement, arguing there was no evidence that any
criminal activity was taking place, and that even if a crime was occurring, there
was no evidence that Tobanche was involved.
The government responded that (1) as the driver, Tobanche, was aware of
the contents of the vehicle, (2) Tobanche was seen rummaging through the trunk
of the car, and (3) there was sufficient evidence that the large amount of
drugs—105 grams of methamphetamine—constituted a per se trafficking amount.
The district court overruled Tobanche’s objection, holding that the
evidence supported a finding that Tobanche had committed a drug distribution
felony under federal law, as well as felony drug possession under New Mexico
law. The court applied the enhancement and sentenced Tobanche to 100 months’
imprisonment, a low-end sentence under the appropriate Guidelines range.
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II. Analysis
A. Standard of Review
We review the procedural reasonableness of a sentence imposed by the
district court for abuse of discretion. See United States v. Halliday, 665 F.3d
1219, 1222 (10th Cir. 2011). We review the district court’s legal conclusions de
novo and its factual findings for clear error. See United States v. Gantt, 679 F.3d
1240, 1246 (10th Cir. 2012). In addition, we view the evidence in the light most
favorable to the district court’s determinations. See United States v. Walters, 269
F.3d 1207, 1214 (10th Cir. 2001). “An error of law is per se an abuse of
discretion.” United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011).
B. Sentencing Guidelines § 2K2.1(b)(6)(B)
The Guidelines provide a four-level enhancement if the defendant
possessed or used a firearm “in connection with another felony offense.” USSG
§ 2K2.1(b)(6)(B). Notes to the Guidelines state the enhancement applies “in the
case of a drug trafficking offense in which a firearm is found in close proximity
to drugs, drug-manufacturing materials, or drug paraphernalia . . . .” Id., cmt.
14(B)(ii). For all other felony offenses, the enhancement applies only if the
firearm “facilitated or had the potential of facilitating” the offense. Id., cmt.
14(A). For the enhancement to apply, the government must prove the above
factors by a preponderance of the evidence. See United States v. Gomez-
Arrellano, 5 F.3d 464, 466 (10th Cir. 1993).
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C. The District Court Properly Applied the Enhancement
The district court found the enhancement could be applied because
Tobanche possessed the firearm in connection with at least two other felonies:
(1) possession with intent to distribute a controlled substance, see 21 U.S.C.
§ 841(a); and (2) felony possession of methamphetamine, see NMSA § 30-31-
23E.
1. Possession with Intent to Distribute
Possession with intent to distribute more than fifty grams of
methamphetamine is a federal felony. See 21 U.S.C. § 841(a), (b)(1)(A)(viii).
The district court found the evidence supported a finding that Tobanche had been
involved with the commission of this felony for several reasons: the quantity of
the drugs found, Tobanche drove the car in which the drugs were found, the drugs
were easily accessible to Tobanche, surveillance video showed Tobanche
rummaging through the car for over fifteen minutes, and multiple weapons were
found in the car. In addition, the district court found the firearm had the potential
to facilitate the commission of a drug felony because Tobanche carried the
handgun—loaded and ready to use—in public while also in the possession of a
large amount of drugs.
We agree that the evidence supported each of these findings, and that they
prove by a preponderance that Tobanche possessed a firearm in connection with
another felony. Our decision in United States v. Gambino-Zavala, 539 F.3d 1221-5-
(10th Cir. 2008), is instructive. There, police searched an apartment and
discovered multiple guns in different rooms and a large amount of heroin in the
kitchen. Although the defendant shared the apartment with others, we upheld the
application of the four-level enhancement because the “amount of drugs the
police recovered was substantial and the drugs were located in an area of the
apartment that a joint occupant would regularly access.” Id. at 1230. This
supported a finding that the defendant had committed a felony—possession with
intent to distribute a controlled substance. Possession of the drugs could be
inferred because the defendant had access to all the areas of the apartment. In
addition, intent to distribute could be found, in part, because the amount of drugs
found was too large for personal consumption.
The facts here are substantially similar. Tobanche drove a vehicle in which
a large amount of methamphetamine was recovered. The drugs were found in an
area of the vehicle—the back seat—that an occupant would regularly access. And
Tobanche rummaged through the car for at least fifteen minutes while the drugs
were in the back seat, so he almost surely knew of their existence and location.
Other evidence further supports the application of the enhancement here.
Tobanche had been involved with other drug felonies in the past. See United
States v. Paneto, 661 F.3d 709, 716 (1st Cir. 2011) (upholding application of the
enhancement, in part, because defendant had prior felony drug conviction).
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Tobanche argues that he possessed the gun for personal protection, not to
facilitate drug offenses. But we agree with the district court and other circuits
that motivations for possessing a firearm need not be mutually exclusive;
Tobanche could have possessed the gun both to protect himself and to facilitate
the commission of felonies. See United States v. Hardin, 248 F.3d 489, 498 (6th
Cir. 2001); see also United States v. Fuentes Torres, 529 F.3d 825, 826 (8th Cir.
2008). Taken together, the evidence in the PSR proved by a preponderance that
Tobanche had possessed a firearm in connection with a violation of § 841.
Finally, the evidence also supported a finding that the firearm had the
potential to facilitate commission of the felony. We have held that possession of
a firearm may facilitate an offense “by emboldening the possessor to commit the
offense.” United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012). The
Justice decision is highly instructive. There, the defendant’s firearms were within
easy reach, and he had methamphetamine on his person. We found that “[a]
reasonable person could find that the firearms gave him a sense of security
emboldening him to venture from his home with drugs that someone might wish
to take from him by force.” Id. Tobanche’s firearm was on his person and the
drugs were within easy reach in the back seat. In addition, we agree with the
district court that a loaded gun—as opposed to an empty one—further supports a
finding that possession of a firearm “emboldened” a defendant to commit an
offense.
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In short, all elements of the enhancement were supported by a
preponderance of the evidence, and the district court did not err in applying it to
Tobanche’s sentence.
2. Felony Possession of Methamphetamine
Our finding with respect to possession with intent to distribute alone
supports affirming the district court. Nonetheless, we address the court’s other
rationale for applying the enhancement: felony possession of methamphetamine
under New Mexico law. Having already found that possession of the firearm had
the potential to facilitate an offense, we analyze only whether the evidence
supported a finding that Tobanche committed this state felony.
New Mexico law makes possession of any amount of methamphetamine a
felony. See NMSA § 30-31-23E. Three elements must be established to prove a
violation: (1) the defendant must possess methamphetamine, (2) the defendant
must know he possesses methamphetamine, and (3) the possession must occur in
New Mexico. See New Mexico Rules Ann., Uniform Jury Instruction 14-3102.
Our findings above largely control here.
We have already determined that Tobanche, by driving a vehicle containing
drugs within easy reach, possessed the methamphetamine. See supra; Gambino-
Zavala, 539 F.3d at 1230. The evidence supports a finding that Tobanche knew
the drugs were methamphetamine because, among other reasons, he rummaged
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through the car—including the back seat—for over fifteen minutes, and had been
convicted of drug offenses in the past.
Thus, the evidence supported a finding that Tobanche possessed a firearm
in connection with the commission of a felony under New Mexico law.
III. Conclusion
We AFFIRM the district court’s application of the four-level enhancement.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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