United States v. Domingo Rodriguez

Case: 12-16486 Date Filed: 09/06/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16486
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80079-KAM-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO RODRIGUEZ,
a.k.a. Giovanni,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 6, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Domingo Rodriguez appeals his 120-month sentence, imposed after he pled
guilty to conspiring to possess with intent to distribute over five kilograms of
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cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846; possessing
cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); and possessing over 500 grams of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). Rodriguez’s sole contention
on appeal in that he erroneously received a two-level firearm enhancement,
pursuant to U.S.S.G. § 2D1.1(b)(1), at sentencing. At the sentencing hearing, a
Drug Enforcement Agency agent testified that Rodriguez brandished a gun at his
coconspirator’s house and threatened to use it in retaliation for the theft of three
kilograms of cocaine. Further, in Rodriguez’s home, agents found three firearms,
ammunition, a bulletproof vest, and a black trash bag containing drug
paraphernalia, including vacuum-seal bags, rubber bands, and ledgers.
Additionally, a gun was found in Rodriguez’s minivan, the same van he used to
purchase cocaine during the conspiracy. The district court found that the display at
Rodriguez’s coconspirator’s house and the guns in Rodriguez’s home supported
the enhancement.
Rodriguez contends there was insufficient evidence to show a connection
between the firearms and the drug-trafficking conspiracy. He argues that he
displayed the gun at his coconspirator’s house simply to blow off steam, not to
protect his drugs or threaten anyone, and that there is no nexus between the guns at
his house and the conspiracy. No drugs were found at the house and he was never
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observed engaging in drug transactions at the home. Finally, Rodriguez denies that
the bags, ledgers, and rubber bands found in his home were drug paraphernalia.
“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)
for clear error, and the application of the Sentencing Guidelines to those facts de
novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per curiam)
(internal quotation marks omitted). Under the clear error standard, we will not
disturb the district court’s factual findings unless “our review of the record leaves
us with the definite and firm conviction that a mistake has been committed.”
United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003) (internal quotation
marks omitted). The Sentencing Guidelines provide that a defendant’s offense
level should be adjusted upward by two levels if the defendant used a dangerous
weapon during the commission of a drug-trafficking offense. U.S.S.G.
§ 2D1.1(b)(1). According to the application notes, “[t]he 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.11(A).
We have interpreted the Guideline and its application notes to mean that
“[t]o justify a firearms enhancement, the government must either [1] establish by a
preponderance of the evidence that the firearm was present at the site of the
charged conduct or [2] prove that the defendant possessed a firearm during conduct
associated with the offense of conviction.” United States v. Stallings, 463 F.3d
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1218, 1220 (11th Cir. 2006); see United States v. Hunter, 172 F.3d 1307, 1308–10
(11th Cir. 1999) (affirming district court’s finding that a firearm discovered in
defendant’s home was conduct relevant to defendant’s possession of narcotics with
intent to distribute, based on evidence that drug paraphernalia, including plastic
baggies and transaction records, were also found in defendant’s home,
notwithstanding fact that no known drug sales took place at defendant’s home). If
the government succeeds in making that showing, the burden shifts to the
defendant to show that a connection between the weapon and the offense was
“clearly improbable.” United States v. Audain, 254 F.3d 1286, 1289 (11th Cir.
2001) (per curiam). That said, the fact that a drug offender possesses a firearm,
standing alone, does not necessarily justify application of the firearms
enhancement. Stallings, 463 F.3d at 1221 (reversing enhancement for firearms
found in defendant’s home, explaining that the government failed to meet its
burden because it “provided no evidence connecting the pistols found in
[defendant’s] home to his alleged drug activity” and it “never addressed the
possibility that the weapons belonged to any of the other adults residing in his
home”).
We discern no clear error in the district court’s application of the firearms
enhancement in this case. Rodriguez’s display of a gun at his conspirator’s house,
in addition to the three guns found at Rodriguez’s home, show that Rodriguez
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possessed firearms “during conduct associated with the offense of conviction.” Id.
at 1220. To begin, the district court found that Rodriguez brandished the gun at his
coconspirator’s house with an eye to protect his drug-dealing by threatening to use
the weapon in retaliation against persons responsible for stealing his drugs. We
see no reason to doubt that determination. Further, three guns and gun-related
items, including a bullet-proof vest, were found in close proximity to drug
paraphernalia (vacuum-seal bags, rubber bands, and ledgers) at Rodriguez’s home,
and there was ample evidence from which the district court could conclude that the
paraphernalia found in the home was part of the same course of conduct
(conspiracy and possession with intent to distribute narcotics) for which Rodriguez
was ultimately charged and convicted. See Hunter, 172 F.3d at 1309. Although
Rodriguez disputed that the items in the trash bag at his home were drug
paraphernalia, the district court did not credit his version of the facts, and the
court’s conclusion in that regard was not clearly erroneous. Because the
government showed that the guns were in proximity to relevant offense conduct,
Rodriguez bore the burden of showing that it was clearly improbable that the
weapons were used in connection with the offense. See Audain, 254 F.3d at 1289.
Rodriguez failed to make that showing.
AFFIRMED.
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