United States v. Serrano

FILED
United States Court of Appeals
Tenth Circuit
March 23, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-4057
v. (D. Utah)
ISAAC SERRANO, (D.C. No. 1:08-CR-37-DB-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, MURPHY and O’BRIEN, 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 appeal centers on the district court’s four-level upward adjustment of
Mr. Serrano’s base offense level because he possessed firearms “in connection
with” another felony case. See USSG § 2K2.1(b)(6). Mr. Serrano contends that
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
hunting rifles and a non-functioning handgun were not the types of firearms
typically associated with drug trafficking to warrant the upward adjustment.
Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we
reject Mr. Serrano’s contention and affirm the district court.
I. BACKGROUND
In March of 2008, the Weber Morgan Narcotics Strike Force initiated an
investigation into a drug distribution operation in Ogden, Utah. On March 11,
2008, a confidential informant (“the informant”) contacted Mr. Serrano, who
agreed to sell cocaine to an undercover agent. Mr. Serrano had another person
deliver cocaine to the agent.
On March 14, 2008, the informant contacted Mr. Serrano, who agreed to
sell more drugs to the undercover agent. Mr. Serrano’s daughter delivered
cocaine to the undercover agent while Mr. Serrano remained in the passenger seat
of a vehicle.
On March 24, 2008, the informant contacted Mr. Serrano, who agreed to
make another drug sale to the undercover agent. Mr. Serrano’s daughter delivered
two OxyContin (a scheduled narcotic) pills and a baggie of marijuana to the
undercover agent while Mr. Serrano sat in the passenger seat of a vehicle.
On March 27, 2008, the strike force executed a search warrant at Mr.
Serrano’s home in Ogden, Utah. The officers found the following evidence:
In the living room:
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• a black digital scale
• a box of .22 caliber bullets in a drawer
• plastic baggies
• a white powdery substance with a spoon on a plate
In the southeast bedroom:
• $1,050 in U.S. currency
• a Remington .270 rifle
• a pill bottle with a white powdery residue with the name Isaac
Serrano on it
• a Browning 16-gauge shotgun
• numerous pill bottles with the name Isaac Serrano on them
• a box of Remington .270 bullets
• two pill bottles with the names Teressa Garcia and Teressa Errano on
them
• a box of .357 Winchester bullets
• a box of American Eagle 9 mm bullets
• a box of .45 caliber bullets
In the northeast bedroom:
• a Jennings .22 caliber rifle
• a loaded gun clip
• a box of .357 magnum bullets
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• a box of .22 caliber bullets
In the northwest bedroom:
• a Remington 870 20-gauge shotgun
• plastic baggies
• a small spoon
In the middle east bedroom closet:
• a box of shotgun shells
Vol. III, ¶ 8.
Mr. Serrano pleaded guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), after the government agreed to
dismiss four counts of possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. § 841(a). The presentence report
recommended a four-level increase in Mr. Serrano’s offense level for possessing
guns in connection with another felony offense, pursuant to USSG § 2K2.1(b)(6).
Mr. Serrano objected to this increase, arguing there was insufficient evidence to
support it.
The government presented testimony at the sentencing hearing regarding
Mr. Serrano’s drug transactions. Amy MacFarland also testified that, during a
2006 OxyContin purchase, Mr. Serrano was on his bed with a semi-automatic
handgun next to him. She testified that she thought she should not “mess with
him” or “pull any tricks” because of the presence of the gun. Rec. vol. II, at 8-9.
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Ms. MacFarland further testified that, just days before the search, when she
owed Mr. Serrano money, he had threatened her with a “hit” if she did not satisfy
her drug debt. She testified that he held a semi-automatic handgun to her ribs,
told her not to “mess with him” and that he would (and did) take the title to her
car if she did not pay him. Id. at 10-11, 39-41. An agent for whom Ms.
MacFarland worked as a confidential informant also testified that Ms. MacFarland
had told him about Mr. Serrano’s holding a gun to her ribs and taking the title to
her car.
After hearing testimony regarding Ms. MacFarland’s history of prior
convictions for thefts and crimes of dishonesty, the district court found Ms.
MacFarland’s testimony regarding her interactions with Mr. Serrano “to be
credible.” Id. at 72. Considering all of the evidence put before it, the court
concluded that Mr. Serrano “was a regular drug user . . . and that he had guns,
and those guns were used in connection with that other felony offense, drug
sales.” Id. at 73.
The district court found that Mr. Serrano possessed firearms in connection
with his regular felony drug distribution and increased his offense level by four
points under § 2K2.1(b)(6). The district court specifically found:
by a preponderance of the evidence that these weapons that were
found in the house have the potential of facilitating another felony
offense, and that is drug trafficking. When I put all the facts together
here, a picture gets painted and it shows the defendant was regularly
involved in the distribution of drugs.
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Id. at 72.
The district court concluded that Mr. Serrano’s offense level was 17 (taking
into account a three-level reduction for acceptance of responsibility) and his
criminal history category was III, resulting in an advisory sentencing range of 30-
37 months. The court sentenced Mr. Serrano to 36 months’ imprisonment, to be
followed by 36 months’ supervised release.
II. DISCUSSION
Mr. Serrano argues that the government failed to show that there was a
close nexus–a legal connection–between the weapons and the evidence of drug
distribution. Without the four-level increase under § 2K2.1(b)(6), Mr. Serrano’s
offense level would be 13 and his advisory Guideline range would be 20-24
months. He therefore urges us to remand this case for resentencing.
A. Standard of Review
Mr. Serrano’s argument challenges the procedural reasonableness of his
sentence. A sentence is procedurally unreasonable if a district court improperly
calculates the applicable Guidelines range. Gall v. United States, 522 U.S. 381,
51 (2007); United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008), cert.
denied, 129 S. Ct. 2829 (2009). We review a district court’s legal conclusions
regarding the Guidelines de novo and its factual findings for clear error. United
States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). The government has the
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burden of proving by a preponderance of the evidence any findings necessary to
support a sentence enhancement. United States v. Tindall, 519 F.3d 1057, 1063
(10th Cir. 2008).
B. Mr. Serrano’s arguments
Under § 2K2.1(b)(6), a defendant’s offense level is increased by four if
“the defendant used or possessed any firearm or ammunition in connection with
another felony offense.” Application Note 14 to § 2K2.1 explains that the phrase
“in connection with” applies “if the firearm or ammunition facilitated, or had the
potential of facilitating, another felony offense or another offense, respectively.”
See United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998) (“[W]e have
generally held that if the weapon facilitated or had the potential to facilitate the
underlying felony, then enhancement under § 2K2.1(b)[(6)] is appropriate.”). As
to handguns specifically, because they are widely recognized tools of the drug
trade, “a weapon’s proximity to narcotics may be sufficient to provide the nexus
necessary to enhance a defendant’s sentence under § 2K2.1(b)[(6)].” Id.
Here, Mr. Serrano does not deny that he was engaging in another felony
offense with his armory of shells, bullets, hunting rifles and a virtually inoperable
handgun in other sections of the house. Instead, he argues that the government
did not prove by a preponderance of the evidence that he possessed the firearms
in connection with another offense, that is the sale of controlled substances.
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Mr. Serrano notes that the weapons’ “diminutive size and poor functioning
condition” suggested little utility as a tool for either intimidating customers or
protecting himself. Apt’s Br. at 10. He points out that rifles are more typically
associated with hunting. And, Mr. Serrano argues that although Ms. MacFarland
testified about a semi-automatic weapon, the officers found no such weapon. As
to the handgun, Mr. Serrano notes that it “fell apart” when his expert picked it up,
indicating that it would serve as a poor weapon with which to intimidate a
customer or rival. Rec. vol. I, doc. 23 (Position of Defendant with Respect to
Sentencing Factors, Ex. B, at 2). Additionally, the government’s expert testified
that one could only fire the gun by holding the cylinder manually in place.
Our precedents do not allow us to be persuaded by Mr. Serrano’s
arguments. While we recognize that the handgun was nearly inoperable, we
conclude that the district court did not clearly err in determining it had the
potential of facilitating a drug offense. The district court found Ms.
MacFarland’s testimony credible and concluded that Mr. Serrano’s completing
drug transactions with a firearm present was more than “coincidental.” Aplt’s Br.
at 8. Moreover, sufficient evidence exists to support the district court’s
conclusion that Mr. Serrano had access to all areas of the house. Accordingly, the
court reasonably concluded a sufficient nexus exists between the rifle and the
drugs to justify the enhancement. See United States v. Gambino-Zavala 539 F.3d
1221, 1230 (10th Cir. 2008) (affirming § 2K2.1(b)(6) enhancement when a
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shotgun and ammunition were found in a closet of a joint occupant’s apartment
because “the shotgun had the potential to facilitate illegal drug transactions by
helping [the defendant] protect himself and his drug supply.”). It simply does not
matter if these are not the usual firearms used in Ogden drug deals. The district
court therefore did not err in applying the § 2K2.1(b)(6) enhancement.
III. CONCLUSION
Because the district court did not err in relying on § 2K2.1(b)(6) to enhance
Mr. Serrano’s sentence, we AFFIRM his sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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