United States v. Julio Cesar Lopez , 249 F. App'x 486 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3323
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Julio Cesar Lopez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 28, 2007
Filed: October 4, 2007
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Julio Cesar Lopez pleaded guilty to possessing approximately thirty-two grams
of cocaine base with the intent to distribute. 21 U.S.C. § 841(a)(1); 841(b)(1)(B). The
District Court1 applied a two-level enhancement to Lopez's sentence after finding that
he possessed a firearm in connection with the offense. U.S. Sentencing Guidelines
Manual (U.S.S.G.) § 2D1.1(b)(1) (2006). Thus, Lopez was ineligible for safety-valve
relief. Id. §§ 2D1.1(b)(9); 5C1.2(a)(2). Lopez appeals, arguing that the court's
application of the firearm enhancement was clearly erroneous. We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Pursuant to a warrant, police officers conducted a search of Lopez's residence
and discovered one kilogram of cocaine, three pounds of marijuana, scales, and drug-
packaging materials in a basement bedroom. Police also recovered a loaded
semiautomatic submachine gun under a mattress in the basement bedroom. In Lopez's
upstairs bedroom, police recovered thirty-two grams of cocaine base. In a post-arrest
statement to police, Lopez admitted that the thirty-two grams of cocaine base found
in the upstairs bedroom and the three pounds of marijuana found in the basement
bedroom belonged to him. Lopez also admitted that he knew the loaded submachine
gun was in the basement and that he had handled the firearm in the past. Lopez
contended, however, that the firearm did not belong to him and that he had asked the
gun's owner to remove the gun from his residence.
At sentencing, Lopez objected to the two-level firearm enhancement
recommended in the presentence investigation report (PSR), but he did not dispute the
underlying facts cited in the PSR to support the enhancement. Lopez argued instead
that the undisputed facts failed to establish a sufficient nexus between the firearm and
the offense to which he was pleading guilty. The government argued that the presence
of the firearm in the basement of Lopez's residence (where Lopez admitted he stored
three pounds of marijuana) combined with Lopez's statement to police that he knew
the firearm was in the house and that he had handled the weapon in the past provided
sufficient evidence to support the enhancement. The District Court rejected Lopez's
argument, applied the two-level firearm enhancement, and sentenced Lopez to 60
months' imprisonment.
"We review the district court's findings of fact for clear error and its application
of the Sentencing Guidelines de novo." United States v. Burling, 420 F.3d 745, 749
(8th Cir. 2005). The guidelines provide that the firearm enhancement "should be
applied if the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. § 2D1.1, cmt. n.3. Lopez correctly notes that
the "mere presence of a firearm is an insufficient predicate for a § 2D1.1(b)(1)
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enhancement." United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005). Rather,
the firearm must be possessed by the defendant and "connected with the criminal
activity before its possession can be used to enhance the defendant's sentence." Id.The firearm may be constructively possessed by the defendant, see United States v.
Torres, 409 F.3d 1000, 1003 (8th Cir. 2005), especially if the firearm is "readily
accessible" at the place where the defendant commits the crime, Savage, 414 F.3d at
967. And the firearm need not be present during the offense of conviction as long as
it is present during relevant conduct. Id. at 966. The government must only establish
by a preponderance of the evidence that a "temporal and spatial nexus [exists] among
the weapon, defendant, and drug-trafficking activity." Torres, 409 F.3d at 1003.
Here, the undisputed facts establish that Lopez lived at the residence in which
the illegal drugs and the firearm were located; Lopez possessed the roughly thirty-two
grams of cocaine base found in his upstairs bedroom and the three pounds of
marijuana found in the basement bedroom; Lopez knew that a loaded semiautomatic
submachine gun was present in the residence and admitted that he had handled the
firearm in the past; and the firearm was recovered from the basement bedroom in close
proximity to Lopez's marijuana. In these circumstances, we hold that the District
Court did not clearly err in finding that it was not clearly improbable that the firearm
was connected with Lopez's drug trafficking activities. Because Lopez was properly
assessed the firearm enhancement, he was not eligible for safety-valve relief.
U.S.S.G. § 5C1.2(a)(2).
We affirm the judgment of the District Court.
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