United States v. Gonzalez-Ambriz , 353 F. App'x 155 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
November 20, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-4074
v.
(District of Utah )
(D.C. No. 2:07-CR-445-TS)
MARTIN GONZALEZ-AMBRIZ,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
In a two-count indictment filed in the United States District Court for the District
of Utah, Martin Gonzalez-Ambriz (“the defendant”) was charged as follows: Count I,
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§841(a)(1) and Count II, possession of a firearm by an illegal alien in violation of 18
U.S.C. §922(g)(5).
*
This order and judgment is not binding precedent, except under the doctrines of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.
Defendant pled guilty to both counts and a Presentence Report (“PSR”) was
prepared using the 2007 Guidelines. Defendant’s base offense level was 32, he received a
two level increase under §2D1.1(b)(1) for possessing a firearm, and a three level
reduction for acceptance of responsibility. With zero criminal history points, the
Guideline range was 108-135 months. However, because of a mandatory statutory
minimum for the drug offense, the resulting Guideline range was 120-135 months.
Defendant filed a Motion for Downward Departure stating that he did not object to the
findings in the PSR but objected to the two-level increase for possessing a firearm and
also requested relief under the “safety valve provision” in §5C1.2. The court disagreed
with defendant, ruling that the enhancement applied and that defendant was not eligible
for safety valve relief. Defendant was sentenced to 120 months imprisonment followed
by 60 months supervised release.
On appeal, defendant’s only argument is that the district court erred in finding him
ineligible for a downward departure pursuant to the safety valve provision in USSG
§5C1.2. We disagree.
Defendant made several sales of methamphetamine to an undercover officer and
pursuant to a search warrant, his apartment, which was shared with his wife and another
family, was searched. In the defendant’s bedroom, officers found several bags of
methamphetamine, cutting agent, scales and other drug paraphernalia. In the bedroom
closet, an unloaded Raven .25 caliber handgun was found along with a large sum of cash,
and small amounts of methamphetamine in jacket pockets.
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On appeal, defendant does not dispute the court’s finding that the circumstances
surrounding his constructive possession of the handgun were sufficient to qualify him for
the enhancement but only contends that the court erred in finding defendant was
ineligible for a downward departure. USSG §5C1.2 provides that the court shall impose a
sentence below a statutory minimum if the defendant meets five criteria. At issue is
whether “the defendant did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon in connection with the offense.” (Emphasis added) .
Defendant argues that although the gun was possessed “proximate to” the offense, it was
not possessed “in connection with the offense.” As support for this, defendant states that
the gun was not owned by him, it was not loaded at the time of the search, and no
ammunition was located in the apartment. The defendant concedes that he has the burden
of establishing by a preponderance of the evidence that he satisfies the criteria in the
“safety valve provision.” See United States v. Cervantes, 519 F.3d 1253 (10th Cir. 2008).
At sentencing the court discussed the application of the safety valve provision and stated
that:
...the firearm was found in the defendant’s bedroom. It was found within
the same areas as a set of scales, methamphetamine, packing material,
cutting agent, and cash. From this, the Court finds that the defendant has
not met his burden to show that he did not possess the firearm in connection
with the offense. Therefore, the Court will not apply the safety valve
provision.
We review a district court’s determination that a defendant is not eligible for
safety valve relief for clear error, giving due deference to its application of the Guidelines
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to the facts. United States v. Payton, 405 F.3d 1168, 1170 (10th Cir. 2005). The district
court correctly applied our case law concerning the application of the safety valve
reduction in finding that the defendant did not meet his burden by a preponderance of the
evidence to demonstrate he meets all five criteria under USSG §5C1.2. We have held
that the “mere propinquity of the weapons and drugs suggests a connection between the
two.” Payton, 405 F.3d at 1171. “A firearm’s proximity and potential to facilitate the
offense is enough to prevent application of USSG §5C1.2.” United States v. Hallum, 103
F.3d 87, 89 (10th Cir. 1996). Here, the firearm was located in defendant’s bedroom closet
close to drugs, money, and other drug paraphernalia. There was also evidence that the
district court chose to credit that defendant admitted ownership of the firearm. The
district court did not err in finding that defendant failed to establish his eligibility for the
safety valve.
We affirm.
ENTERED FOR THE COURT
Robert H. McWilliams
Senior Circuit Judge
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