United States v. Primitivo Barraza ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2960
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Primitivo Barraza, also known as *
Primo, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: September 23, 1999
Filed: October 1, 1999
___________
Before WOLLMAN, Chief Judge, HANSEN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Primitivo Barraza sold methamphetamine to a police informant on July 18, 1997.
He pleaded guilty to delivering methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). At sentencing, Nicholas Vasquez testified that he had frequently
purchased methamphetamine from Barraza during the period from August 1 through
October 11, 1996 (when Vasquez was arrested). In addition to describing those
transactions generally, he described a particular October 11 transaction in which he
traded a gun to Barraza as partial payment for a pound of marijuana and four ounces
of methamphetamine. Over Barraza’s objection, the district court1 determined that the
October 11, 1996 gun-for-drugs transaction was relevant conduct with respect to the
July 18, 1997 methamphetamine delivery; applied a two-level enhancement under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (1995) for possession of a dangerous
weapon; and sentenced Barraza to 108 months imprisonment and 5 years supervised
release. On appeal, Barraza challenges this enhancement.
The dangerous-weapon enhancement applies not only if a weapon was connected
to the offense of conviction, but also if a weapon was connected to relevant conduct.
See United States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997). Having carefully
reviewed Vasquez’s testimony, we conclude that the district court did not clearly err
in determining that the gun-for-drugs transaction was relevant conduct. Vasquez’s
testimony established that Barraza’s sales to him were similar to Barraza’s sale to the
police informant in the following ways: methamphetamine was sold, it was packaged
in the same way, the sales were arranged by pager, and the sales took place in
Nebraska. See United States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998) (standard
of review; relevant conduct where transactions which occurred eighteen months apart
were distribution-related offenses involving similar quantities of same drug, were part
of regular pattern of drug distribution, and occurred within same state). We also
conclude that the district court did not clearly err in determining that the gun was
connected to the conduct. See United States v. Rogers, 150 F.3d 851, 857-58 (8th Cir.
1998) (standard of review; exchanging gun for drugs suffices to establish nexus for
enhancement under § 2D1.1(b)(1)), cert. denied, 119 S. Ct. 888 (1999).
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
-2-
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-