United States v. Gutierrez-Ayala ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1324
v. (D. Colorado)
ARNOLDO GUTIERREZ-AYALA, (D.C. No. 03-CR-221-WYD)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Arnoldo Gutierrez-Ayala pled guilty to one count of conspiracy to possess
with intent to distribute more than fifty grams of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846. He was sentenced to 87 months’ imprisonment,
followed by four years of supervised release. He appeals his sentence, arguing
that the district court erred in applying a firearm enhancement pursuant to United
States Sentencing Commission, Guidelines Manual (“USSG”), §2D1.1(b)(1) (Nov.
2003). For the reasons set forth below, we affirm.
BACKGROUND
Between November 2002 and April 2003, an individual working as an
informant for the Drug Enforcement Administration (“DEA”) made several
controlled purchases from Gutierrez-Ayala, involving a total of approximately
four pounds of methamphetamine. The first of these transactions took place on
November 5 at Gutierrez-Ayala’s residence. The informant wore a wire during
the transaction and was debriefed afterwards by DEA agents. According to the
later testimony of one of these agents, the informant related that the transaction
took place in the garage area and that while he and Gutierrez-Ayala were talking,
Gutierrez-Ayala “went to a toolbox within the garage and brought to him wrapped
in a red towel a [black] .45 caliber handgun” with wood grips. Tr. of Sentencing
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Day 2 at 30, 52, R. Vol. VI. Gutierrez-Ayala “told the [informant] that he had
purchased the gun at a local gun show and . . . that he had had other weapons.”
Id. at 30. According to the agent’s testimony, in conjunction with showing the
informant the gun, Gutierrez-Ayala also described a difficulty he had had with an
associate who had not yet paid for the methamphetamine he had bought, and
indicated “that he was going to hurt this associate.” Id. at 31.
During the execution of a search warrant in April 2003, approximately
fifteen firearms, including a black .45 caliber handgun with wood grips, were
seized from a locked gun safe at Gutierrez-Ayala’s residence. According to the
DEA agent’s testimony, the informant identified this .45 handgun as the gun he
had been shown in the November 5 transaction. In a superseding indictment,
Gutierrez-Ayala was charged with two counts involving methamphetamine
distribution. In return for the dismissal of the indictment, he pled guilty to a one-
count information, as indicated above.
Following Gutierrez-Ayala’s guilty plea, the United States Probation Office
prepared a Presentence Report (“PSR”), which calculated a sentencing range
according to the Guidelines. The PSR calculated a total offense level of 35,
which, together with a criminal history category of I, yielded a sentencing range
of 168 to 210 months’ imprisonment. The PSR included a two-level enhancement
to the offense level pursuant to USSG §2D1.1(b)(1), based on Gutierrez-Ayala’s
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possession of a firearm during the November 5 transaction with the informant,
and a two-level enhancement pursuant to USSG §3B1.1(c), based on Gutierrez-
Ayala’s role as a leader or organizer in the conspiracy. Gutierrez-Ayala objected
to both of these enhancements.
Responding to a motion by Gutierrez-Ayala, the district court deferred
sentencing until the Supreme Court issued its decision in United States v. Booker,
543 U.S. 220 (2005). The court then held a sentencing hearing to consider
Gutierrez-Ayala’s objection. The DEA agent testified as described above, and
further indicated that the informant was not himself facing a criminal charge or
under investigation at the time he provided assistance, though he had previously
been a target of a DEA investigation. After hearing this testimony and counsels’
arguments, the court disallowed the enhancement under §3B1.1(c) but upheld the
enhancement under §2D1.1(b)(1). The court “f[ou]nd . . . credible [the DEA
agent]’s testimony,” and stated that it
believe[d] that . . . as a part of the [November 5] transaction the
[informant] saw a .45 caliber handgun that was displayed by
Gutierrez-Ayala, and . . . coupled with the fact that when a search
warrant was executed on [Gutierrez-Ayala]’s home, 14 weapons were
found, so the Court finds that there’s an adequate record to justify
the gun enhancement.
Tr. of Sentencing Day 2 at 62, R. Vol. VI. The court also granted the
government’s motion for a three-level reduction pursuant to USSG §5K1.1 for
substantial assistance, and added an additional one-level reduction, leading to a
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guideline sentencing range of 87 to 108 months. Taking into account the factors
listed in 18 U.S.C. § 3553(a), the court sentenced Gutierrez-Ayala to the low end
of that range. Gutierrez-Ayala appealed his sentence, challenging only the
applicability of the firearm enhancement under USSG §2D1.1(b)(1).
DISCUSSION
In Booker, “the Supreme Court held that the mandatory application of the
Guidelines to judge-found facts (other than a prior conviction) violates the Sixth
Amendment” and thus rendered the Guidelines advisory rather than mandatory.
United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). The
advisory Guidelines remain “a factor to be considered in imposing a sentence.”
Id. Thus, district courts “‘must consult those Guidelines and take them into
account when sentencing.’” Id. (quoting Booker, 543 U.S. at 264).
On appeal, while we review a defendant’s ultimate sentence for
reasonableness, we continue to review the district court’s application of the
Guidelines de novo, and we review any factual findings for clear error. Id. at
1054. Where the district court correctly applies the Guidelines and imposes a
sentence within the applicable Guidelines range, that sentence “is entitled to a
rebuttable presumption of reasonableness.” Id. However, if the district court errs
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in applying the Guidelines, we must remand unless the error is harmless. Id. at
1055.
As indicated, Gutierrez argues on appeal that the district court erred in
ruling that the USSG §2D1.1(b)(1) enhancement for possession of a firearm was
applicable in this case. The provision directs that a two-level increase be imposed
“[i]f a dangerous weapon (including a firearm) was possessed.” USSG
§2D1.1(b)(1). The commentary to this section indicates that this enhancement
“reflects the increased danger of violence when drug traffickers possess weapons”
and that it “should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” USSG §2D1.1,
comment. (n.3).
In imposing this enhancement, the government “bears the initial burden of
proving possession of the weapon by a preponderance of the evidence.” United
States v. Williams, 431 F.3d 1234, 1237 (10th Cir. 2005), cert. denied, 74
U.S.L.W. 3586 (U.S. Apr. 17, 2006) (No. 05-9895). This burden may be satisfied
by a showing that “‘a temporal and spatial relation existed between the weapon,
the drug trafficking activity, and the defendant.’” Id. (quoting United States v.
Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001) (internal quotation omitted)). If
the government succeeds in meeting this burden, “‘the burden shifts to the
defendant to show that it is clearly improbable the weapon was connected with
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the offense.’” Id. (quoting Pompey, 264 F.3d at 1181 (internal quotation
omitted)).
Gutierrez-Ayala concedes that “if he had displayed a weapon to [the
informant] during the [November 5] drug transaction, imposition of the firearm
enhancement would be appropriate.” Appellant’s Reply Br. at 2. However, he
argues that there was insufficient proof that he did display the weapon at that time
because the government failed to introduce either the informant himself or the
wire recording of the November 5 transaction at the sentencing hearing.
According to Gutierrez-Ayala, the absence of the informant or the recording is
fatal to the validity of the §2D1.1(b)(1) enhancement because the credibility of
the informant, who provided the only evidence that a firearm had been present at
the November 5 transaction, was “the critical issue.” Appellant’s Op. Br. at 14.
In contrast, Gutierrez-Ayala states, the credibility of the DEA agent who testified
is “not particularly relevant.” Id. at 13. Gutierrez-Ayala further argues that the
court’s application of the §2D1.1(b)(1) enhancement was inconsistent with its
rejection of the §3B1.1(c) enhancement, as the same DEA agent testified for
purposes of both enhancements.
We disagree with Gutierrez-Ayala’s assertions regarding the nature of the
government’s evidence. A sentencing court “may consider hearsay evidence
provided that the evidence has sufficient indicia of reliability,” and use of such
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evidence, by itself, is insufficient to render a sentencing enhancement invalid.
United States v. Dazey, 403 F.3d 1147, 1177 n.7 (10th Cir. 2005); see also United
States v. Espinoza, 338 F.3d 1140, 1152 (10th Cir. 2003). Thus, the
government’s failure to introduce the informant or the wire recording is not fatal.
The issue is whether the hearsay evidence offered by the DEA agent has sufficient
evidence of reliability.
Here, the account of the DEA agent, whom the district court deemed
credible, provides details that adequately corroborate the informant’s hearsay
statements. Most significantly, the informant first told DEA agents that
Gutierrez-Ayala displayed a gun when the informant was debriefed, shortly after
the November 5 transaction occurred, and described the gun at that time. The
timing of this first mention of the gun undermines Gutierrez-Ayala’s speculation
that the informant “may have seen that gun on a different occasion, and fabricated
that he saw the gun during the drug transaction.” Appellant’s Reply Br. at 3. A
gun matching the informant’s description was then found at Gutierrez-Ayala’s
residence, and the informant identified it then as the gun he had previously seen.
We also disagree that there is any inconsistency in the court’s rejection of a
§3B1.1(c) enhancement while applying a §2D1.1(b)(1) enhancement. In rejecting
the former enhancement, the court did not state that it considered the hearsay
testimony in regard to that enhancement unreliable. The court merely found that
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it “c[ouldn]’t tell from the testimony . . . who the leader or the follower was.” Tr.
of Sentencing Day 2 at 56, R. Vol. VI.
We agree with the district court that the hearsay evidence offered by the
government was sufficiently reliable. The court’s consequent finding that
Gutierrez-Ayala displayed a weapon during the November 5 methamphetamine
transaction is not clearly erroneous. We therefore uphold the court’s application
of §2D1.1(b)(1). As Gutierrez-Ayala offers no other basis for holding his
sentence unreasonable, we affirm his sentence. 1
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
1
Although Gutierrez-Ayala does not raise the issue, we note that the court’s
reliance on judge-found facts in applying the §2D1.1(b)(1) enhancement does not
violate the Sixth Amendment because the finding “‘did not increase [Gutierrez-
Ayala’s] sentence beyond the maximum authorized by the facts’ admitted by him
in his plea agreement.” Williams, 431 F.3d at 1239-40 (quoting Dazey, 403 F.3d
at 1174); cf. United States v. Clark, 415 F.3d 1234, 1239 (10th Cir. 2005); United
States v. Johnson, 414 F.3d 1260, 1263 (10th Cir. 2005); United States v. Hauk,
412 F.3d 1179, 1193 (10th Cir. 2005). Gutierrez-Ayala’s sentence of 87 months
remains within the Guideline sentencing range, for an offense level of 27, of 70 to
87 months that would apply in the absence of the two-level §2D1.1(b)(1)
enhancement. See USSG Ch. 5, Pt. A.
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