United States v. Anastacio Carreno-Espinoza , 583 F. App'x 129 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4107
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANASTACIO CARRENO-ESPINOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00175-TDS-1)
Submitted: August 29, 2014 Decided: September 8, 2014
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
T. Nick Matkins, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anastacio Carreno-Espinoza appeals from his 65-month
sentence imposed pursuant to his guilty plea to possession of
firearms by an illegal alien. On appeal, he challenges the
district court imposition of a four-level enhancement under U.S.
Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012) for
possession of the firearms in connection with another felony
offense, and asserts that his sentence was substantively
unreasonable. We affirm.
In reviewing the district court’s application of the
Sentencing Guidelines, we review its legal conclusions de novo
and its factual findings for clear error. United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012). An enhancement
under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012)
is appropriate when a firearm possessed by a defendant
“facilitated, or had the potential of facilitating, another
felony offense.” USSG § 2K2.1 cmt. n.14(A). The purpose of
Section 2K2.1(b)(6) is “to punish more severely a defendant who
commits a separate felony offense that is rendered more
dangerous by the presence of a firearm.” United States v.
Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation
marks omitted).
The requirement that the firearm be possessed “in
connection with” another felony “is satisfied if the firearm had
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some purpose or effect with respect to the other offense,
including if the firearm was present for protection or to
embolden the actor.” United States v. McKenzie-Gude, 671 F.3d
452, 464 (4th Cir. 2011) (internal quotation marks omitted).
However, “the requirement is not satisfied if the firearm was
present due to mere accident or coincidence.” Jenkins, 566 F.3d
at 163 (internal quotation marks omitted). The Guidelines
commentary specifically provides that a defendant possesses a
firearm in connection with another felony “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 . . . because the presence of the firearm has the
potential of facilitating [the drug-trafficking] felony
offense.” USSG § 2K2.1 cmt. n.14(B).
We find that the district court did not err in
concluding that the enhancement should apply. The record
establishes that two of the firearms were located in the home,
were loaded, and were easily accessible. In addition, based on
Carreno-Espinoza’s conflicting explanations, the hearsay
statements of informants, and the items recovered in the search,
the Government presented sufficient evidence that Carreno-
Espinoza was engaged in drug dealing, including the sale of a
large amount of cocaine only the day before from his home.
Moreover, the photographs and currency found in the home, and
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the surrounding circumstances, showed that Carreno-Espinoza
flaunted illegally possessed firearms and proceeds from his drug
trafficking, further connecting the firearms to the drugs. The
district court correctly noted that firearms have the tendency
to facilitate drug sales by offering protection and emboldening
drug sales. See USSG § 2K2.1 cmt. n.14(B). Based on the
foregoing, the district court properly found sufficient evidence
of drug dealing and a sufficient nexus between the firearms and
Carreno-Espinoza’s drug activities, and there was no error in
application of the enhancement.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). When reviewing for substantive
reasonableness, the district court “tak[es] into account the
totality of the circumstances.” Id. at 51. If the sentence is
within or below the properly calculated Guidelines range, we
apply a presumption on appeal that the sentence is substantively
reasonable. United States v. Yooho Weon, 722 F.3d 583, 590 (4th
Cir. 2013). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted). Because there is a range of permissible outcomes for
any given case, an appellate court must resist the temptation to
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“pick and choose” among possible sentences and rather must
“defer to the district court's judgment so long as it falls
within the realm of these rationally available choices.” United
States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); see also
United States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008)
(noting substantive reasonableness “contemplates a range, not a
point”).
On appeal, Carreno-Espinoza argues that his within-
Guidelines sentence is substantively unreasonable in light of
his limited criminal history, family support, and the fact that
he will be deported. However, the district court considered
these mitigating factors at sentencing along with the serious
nature of the offense, Carreno-Espinoza’s relevant conduct, the
need for deterrence, and the need to promote respect for the
law. Carreno-Espinoza’s argument is essentially just a
disagreement with the district court’s weighing of the statutory
factors; he has not shown why the district court’s conclusions
were unreasonable. Because Carreno-Espinoza has failed to rebut
the presumption of reasonableness, we conclude that his sentence
is substantively reasonable.
Accordingly, we affirm Carreno-Espinoza’s sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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