United States v. Jerardo Perez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15158 NOVEMBER 29, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cr-00032-KD-M-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERARDO GONZALEZ PEREZ,
a.k.a. Bally,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 29, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
On June 23, 2010, Jerardo Gonzales Perez pled guilty to three counts of a
twelve-count indictment: Count One, conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 846, and Counts Eleven
and Twelve, possession of methamphetamine with intent to distribute on two
separate days, in violation of 21 U.S.C. § 841(a)(1). On November 1, 2010, the
district court sentenced Perez to concurrent prison terms of 121 months. He now
appeals his sentences.
Perez argues that the district court, in determining his total offense level
under the Sentencing Guideline applicable to his offenses, U.S.S.G. § 2D1.1, erred
in enhancing the base offense level pursuant to U.S.S.G. § 2D1.1(b)(1), for
possession of a firearm by his codefendants, and U.S.S.G. § 3B1.1(a), for his role
as a manager or supervisor in the offense. He therefore asks that we vacate his
sentences and remand for resentencing pursuant to a Guidelines sentence range
determined without reference to these enhancements. We find no error and
accordingly affirm.
Perez argues that the § 2D1.1(b)(1) enhancement was inappropriate because
his purported possession of a firearm via his codefendants was neither reasonably
foreseeable nor in furtherance of the conspiracy. Section 2D1.1(b)(1) provides
that, if a defendant possessed a dangerous weapon—two handguns in this
case—during a drug-trafficking offense, his offense level should be increased by
two levels. This enhancement is applied when such weapon is possessed by a
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co-conspirator if the Government proves by a preponderance of the evidence that:
(1) the possessor of the weapon was a co-conspirator; (2) the possession was in
furtherance of the conspiracy; (3) the defendant was a member of the conspiracy at
the time of possession; and (4) the co-conspirator’s possession was reasonably
foreseeable by the defendant. United States v. Gallo, 195 F.3d 1278, 1284 (11th
Cir. 1999). The commentary to § 2D1.1(b)(1) states that the enhancement should
be applied if the weapon was present, unless it is clearly improbable that it was
connected to the offense. U.S.S.G. § 2D1.1(b)(1), comment. (n.3).
To prove that possession was in furtherance of the conspiracy, the
Government need only show by a preponderance of the evidence that the weapon
was present at the site of the charged offense, unless it was clearly improbable that
it was connected with the offense. United States v. Fields, 408 F.3d 1356, 1359
(11th Cir. 2005). Once the Government shows that a weapon was present, the
burden shifts to the defendant to show that a connection between the weapon and
the offense is clearly improbable. Id.With regard to the reasonable foreseeability prong of Gallo, we have
recognized that handguns are a tool of the drug trade, and that there is a frequent
and overpowering connection between their use and narcotics trafficking. Pham,
463 F.3d at 1246. To this end, we have found it reasonably foreseeable that a
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co-conspirator would possess a firearm where the conspiracy involved trafficking
in lucrative and illegal drugs. Fields, 408 F.3d at 1359. We have also upheld
application of the § 2D1.1(b)(1) enhancement even where the defendant claims he
was unaware of the firearm possession. United States v. Pham, 463 F.3d 1239,
1246 (11th Cir. 2006).
In this case, the Government proved that the handguns were connected to
the charged offenses and that their use by a co-conspirator was reasonably
foreseeable. Id. And Perez failed to show that a connection between the handguns
and the offense was clearly improbable. The § 2D1.1(b)(1) enhancement was
therefore appropriate.
Perez argues that the § 3B1.1(b) enhancement was inappropriate because
the evidence was insufficient to prove that he managed or supervised another
person in connection with the occurrence of the offenses for which he pled guilty.
Section 3B1.1(b) instructs the district courts to increase a defendant’s offense
level by three levels if the defendant was a manager or supervisor (but not an
organizer or leader) of the offense, and the criminal activity involved five or more
participants or was otherwise extensive. The Government bears the burden of
proving by a preponderance of the evidence that the defendant played such a role
in the offense. United States v. Glinton, 154 F.3d 1245, 1260 (11th Cir. 1998). In
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determining the defendant’s role in the offense, the district court should consider
the following factors:
[T]he exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1, comment. (n.4). There is no requirement that all the
considerations must exist in any one case. United States v. Ramirez, 426 F.3d
1344, 1356 (11th Cir. 2005). The defendant need only manage or supervise one
other participant for the enhancement to apply. U.S.S.G. § 3B1.1, comment. (n.2).
The Government is not required to prove that the defendant controlled another
participant. United States v. Matthews, 168 F.3d 1234, 1250 (11th Cir. 1999).
Given the uncontested factual statements in the presentence investigation
report and the testimony presented at Perez’s sentencing hearing concerning
Perez’s direction of his courier, Maria Lopez, we conclude that the Government
satisfied its burden of proof and that the court could reasonably find that Perez
occupied a managerial role in the offense. Accordingly, no error occurred in the
court’s application of U.S.S.G. § 3B1.1(b).
AFFIRMED.
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