United States v. Isidoro Mojica , 429 F. App'x 592 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0637n.06
No. 09-4147
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Aug 29, 2011
)
LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ISIDORO MOJICA, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
)
Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge.*
ZATKOFF, District Judge. Defendant-Appellant Isidoro Mojica appeals his sentence of
57 months for possession of cocaine with intent to distribute and being a felon in possession of a
firearm. Although 57 months is at the very bottom of the advisory Guidelines range calculated by
the district court, Mojica contends that the district court erred when it applied a four-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(6). For the reasons that follow, this Court AFFIRMS the
district court’s sentence of 57 months.
I. BACKGROUND
*
The Honorable Lawrence P. Zatkoff, United States District Court for the Eastern District
of Michigan, sitting by designation.
The facts of this case are not disputed. In November 2006, Mojica was convicted of
felonious drug trafficking in the Cuyahoga (Ohio) Common Pleas Court. In early March 2008,
Mojica purchased a Taurus model PT-III Pro 9mm pistol at a gun store using false identification.
In June 2008, Mojica left his wife and children and began living at the home of his girlfriend,
Selenas Rosada. Rosada stated that she found the firearm by their bed while vacuuming the home
on September 1, 2008. Rosada stated that, on the same day, she asked Mojica to remove the gun
from the house, and Mojica agreed. Nonetheless, on September 3, 2008, after obtaining consent
from Rosada to search her home, police found the unloaded 9mm pistol and ten rounds of Luger
9mm ammunition on the floor under the night stand in the bedroom where Mojica slept. The police
also found: (1) an electronic scale and residual amounts of cocaine in a dresser drawer in Mojica’s
bedroom, (2) cocaine and a second electronic scale in a box on an upper shelf in a closet in Mojica’s
bedroom, and (3) tools allegedly used for cutting and re-packaging cocaine in a room across the hall
from Mojica’s bedroom. In total, police seized 63.4 grams of cocaine from Mojica’s bedroom. The
9mm pistol and ten rounds of ammunition were less than 10 feet away from the cocaine and the
electronic scales.
Mojica was charged with, and he pleaded guilty without the benefit of a plea agreement to,
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possessing
cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). The final
presentence investigation report for Mojica recommended a four-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(6), to which Mojica objected. At the sentencing hearing, the district court heard
argument for and against the four-level enhancement, as well as testimony from Rosada and Mojica’s
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wife, Janette Ortiz, on Mojica’s behalf. The district court rejected Mojica’s argument and applied
the four-level enhancement to the base offense level of 20. After awarding a three-level reduction
for acceptance of responsibility, the district court determined that Mojica’s total offense level was
21. Together with a criminal history category IV, the district court calculated an advisory guideline
range of 57-71 months for Mojica’s offenses. The district court sentenced Mojica to 57 months
imprisonment on each count, to be served concurrently.
II. STANDARD OF REVIEW
This Court “review[s] a district court’s calculation of the advisory sentencing Guidelines as
part of an obligation to determine whether the district court imposed a sentence that is procedurally
unreasonable.” United States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009) (quoting United States v.
Bullock, 526 F.3d 312, 315 (6th Cir. 2008)). When reviewing a sentence, this Court reviews the
district court’s factual findings for clear error and its legal conclusions de novo. Bullock, 526 F.3d
at 315-16. In a recent and factually similar case, this Court analyzed case precedent and articulated
the specific standard of review applicable to a district court’s determination that the § 2K2.1
enhancement applies. See United States v. Taylor, No. 09-1961, 2011 WL 2184325, at *11 (6th Cir.
2011). This Court reviews the district court’s factual findings for clear error, and accords “due
deference” to the district court’s determination that the firearm was used or possessed “in connection
with” the other felony, thus warranting the application of the U.S.S.G. § 2K2.1(b)(6) enhancement.
Id.
III. ANALYSIS
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A sentencing court may apply a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) “[i]f
the defendant used or possessed any firearm or ammunition in connection with another felony
offense.” Id. To apply the § 2K2.1(b)(6) enhancement, the sentencing court must find that the
government has established, by a preponderance of the evidence, that the defendant: (1) committed
another felony offense, and (2) used or possessed a firearm in connection with that offense. United
States v. Gates, 461 F.3d 703, 707 (6th Cir. 2006). As Mojica pleaded guilty to possession of
cocaine with the intent to distribute, the first element has been satisfied. Mojica argues, however,
that the district court’s application of U.S.S.G. § 2K2.1(b)(6) was procedurally unreasonable because
there was not sufficient evidence to support a connection between the 9mm pistol found in Mojica’s
bedroom and the cocaine he possessed with the intent to distribute.
“Although the Guidelines do not define the phrase ‘in connection with’ set forth in
§ 2K2.1(b)(6), the accompanying Commentary . . . explain[s] that subsection (b)(6) applies ‘if the
firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.’”
Angel, 576 F.3d at 320 (quoting U.S.S.G. § 2K2.1(b)(6), n.14(A) (2007)); see also Taylor, 2011 WL
2184325, at *11. This Court has recognized that “demonstrating this nexus is not a particularly
onerous burden.” United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010). Close proximity
is not dispositive as “[s]imultaneous but coincidental possession of firearms and drugs” alone does
not support a § 2K2.1(b)(6) enhancement. Davis, 372 F. App’x at 530 (citing Angel, 576 F.3d at
321). Likewise, “[m]ere proof that the firearm and drugs are in the same place does not, ipso facto,
support application of the enhancement.” United States v. Campbell, 257 F. App’x 981, 982 (6th
Cir. 2007); see also Hardin, 248 F.3d at 495-96 (“mere[] . . . proof that narcotics and firearms were
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present in the same residence, or even in the same room,” does not necessarily support a §
2K2.1(b)(6) enhancement). Nonetheless, the government need only “establish that there was a nexus
between the firearm and the other felony offense that is more than coincidental.” United States v.
Huffman, 461 F.3d 777, 788 (6th Cir. 2006).
This Court has adopted the “fortress theory” for purposes of determining whether the “in
connection with” language of U.S.S.G. § 2K2.1(b)(6) has been satisfied. Under the fortress theory,
“a sufficient connection is established if it reasonably appears that the firearms found on the
premises controlled or owned by a defendant and in his actual or construction possession are to be
used to protect the drugs or otherwise facilitate a drug transaction.” Angel, 576 F.3d at 321 (citation
and internal quotation marks omitted). Likewise, this Court has concluded that a “firearm . . . found
in the same room where . . . cocaine [i]s stored can lead to the justifiable conclusion that the gun was
used in connection with the felony.” Hardin, 248 F.3d at 498-99 (footnote omitted); see also Davis,
372 F. App’x at 629 (“the [four-level] enhancement applies ‘in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs’ . . . ‘because the presence of the firearm has
the potential of facilitating another felony offense.’”) (quoting U.S.S.G. § 2K2.1(b)(6), n.14(B)).
In this case, the Court finds that the government met its burden of showing, by a
preponderance of the evidence, that the 9mm pistol was used “in connection with” drug trafficking.
The undisputed evidence is that: (1) the 9mm pistol and ten rounds of ammunition were located on
the floor under the night stand in Mojica’s bedroom, less than 10 feet away from the electronic scales
and cocaine, and (2) tools used for cutting and re-packaging cocaine were in a room across the hall.
Based on this evidence, the Court concludes that the 9mm pistol owned by Mojica reasonably
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appeared to be used to protect the cocaine and had an emboldening role in Mojica’s intent to traffic
the cocaine. See Angel, 576 F.3d at 321. As this Court has stated:
While it may not be uncommon for people to keep weapons in their bedrooms out of
general concern for personal safety, it is not common for people to stash a large
supply of drugs in the bedroom where they have their firearm at the ready. The
defendant chose the location for the drugs and the gun–and that combination provides
the factual support for this enhancement.
Hardin, 248 F.3d at 500.
The fact that the firearm was not in the exact same location as the drugs (as was the case in
Hardin) is not significant. The government is not required to show that a defendant “had both the
gun and the cocaine on his person, or that he was holding the gun while selling the cocaine, or that
he confessed that he was using the gun to protect the cocaine.” Id. at 495. As defense counsel has
acknowledged, the firearm was accessible to someone in the bed or within the bedroom. Nor has
this Court “read the term ‘in connection with’ to require additional evidence beyond that presented
here.” Id. Rather, in this case, as in Hardin, “it cannot be denied that the bedroom was the stash
location for the cocaine, and that a readily accessible firearm was there if needed to protect the
cocaine.” Id. at 500.
For the foregoing reasons, this Court finds that the district court appropriately applied the
four-level enhancement pursuant to § 2K2.1(b)(6). Id. (holding that the fortress theory applied where
a firearm and marijuana were found on a night stand, and cocaine was found in the same room, as
defendant had “easy access” to the firearm); U.S.S.G. § 2K2.1(b)(6), n.14(B) (Subsection[] (b)(6)
. . . appl[ies] . . . (ii) in the case of a drug trafficking offense in which a firearm is found in close
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proximity to the drugs[.]”). The Court also finds that the advisory Guidelines were calculated
correctly and that Mojica’s sentence was not procedurally unreasonable.
Finally, this Court concludes that Mojica’s sentence was substantively reasonable. Mojica
was sentenced at the very bottom of the applicable advisory Guidelines range. A sentence within
the advisory Guidelines range is afforded a rebuttable presumption of reasonableness, Rita v. United
States, 551 U.S. 338, 347 (2007), and Mojica has not challenged the substantive reasonableness of
his sentence.
IV. CONCLUSION
For the reasons stated, the sentence imposed by the district court is AFFIRMED.
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