United States v. Fred Gutierrez

Case: 11-40770 Document: 00511819213 Page: 1 Date Filed: 04/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 12, 2012
No. 11-40770
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRED FLORES GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-48-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Fred Flores Gutierrez appeals his 168-month sentence for conspiracy to
possess with intent to distribute and to distribute cocaine. He asserts that the
district court erred by imposing a two-level enhancement under U.S.S.G.
§ 2D1.1(b)(1) based on a finding that it was reasonably foreseeable that his co-
conspirators would carry firearms. According to Gutierrez, it was not reasonably
foreseeable because he had an understanding with the supplier of the cocaine
that guns would not be involved. We review for clear error the factual finding
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40770 Document: 00511819213 Page: 2 Date Filed: 04/12/2012
No. 11-40770
that the possession of firearms by co-conspirators was reasonably foreseeable.
United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006).
We have held repeatedly that firearms are tools of the drug trafficking
trade. See Hernandez, 457 F.3d at 423; United States v. Dixon, 132 F.3d 192,
202 (5th Cir. 1997); United States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).
As is amply evident in the record, this is not a case of petty drug transactions by
minor dealers. There is evidence that Gutierrez trafficked between 15 and 40
kilograms of cocaine in transactions involving two of the co-conspirators who
were arrested with firearms in his apartment. There is evidence that the
cocaine was valued at $24,000 a kilogram. The record shows that his co-
conspirators’ role was to provide security for the cocaine and proceeds on behalf
of the supplier.
In light of this evidence, it is at least plausible that the possession of
weapons by Gutierrez’s co-conspirators remained reasonably foreseeable to him
despite any agreement he may have had that guns would not be involved. See
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007); Hernandez, 457 F.3d
at 423; Dixon, 132 F.3d at 202; Mergerson, 4 F.3d at 350. We are not “left with
the definite and firm conviction that a mistake has been committed,” and we find
no clear error in the imposition of the enhancement. Trujillo, 502 F.3d at 356(internal quotation marks and citation omitted).
AFFIRMED.
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