United States v. Rafael Jaramillo , 615 F. App'x 792 ( 2015 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4929
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    RAFAEL PINEDA JARAMILLO, a/k/a Aurelio Garcia Penaloza,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   N. Carlton Tilley,
    Jr., Senior District Judge. (1:14-cr-00051-NCT-1)
    Submitted:   July 23, 2015               Decided:   September 10, 2015
    Before SHEDD, FLOYD, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Randolph M. Lee, Charlotte, North Carolina, for Appellant.
    Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY,
    Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Rafael    Pineda     Jaramillo      appeals    from    his    conviction      and
    120-month      sentence    imposed      pursuant      to    his    guilty    plea   to
    manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1),
    (b)(1)(A) (2012).          On appeal, Jaramillo’s counsel submitted a
    brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967),
    certifying that there are no meritorious grounds for appeal, but
    questioning      whether     the    district     court      erred    in     enhancing
    Jaramillo’s sentence for possession of firearms in connection
    with the offense.           Although advised of his right to do so,
    Jaramillo   has    not     filed    a    pro    se    supplemental        brief.    The
    Government declined to file a brief. *               After a thorough review of
    the record, we affirm.
    Jaramillo argues that the district court erred in applying
    the   enhancement         under    U.S.       Sentencing      Guidelines       Manual
    § 2D1.1(b)(1)      (2013),    for    possession        of    firearms,      asserting
    there was insufficient evidence that he possessed the firearms
    found in the stash house or that the firearms were connected to
    the drug activity for which he was convicted.                       In assessing a
    challenge to the district court’s application of the Guidelines,
    we review the district court’s factual findings for clear error
    *In addition, the Government has not filed a motion to
    dismiss based upon Jaramillo’s appellate waiver in his plea
    agreement. We decline to raise the waiver sua sponte.
    2
    and its legal conclusions de novo.                        United States v. Alvarado
    Perez, 
    609 F.3d 609
    , 612 (4th Cir. 2010).
    Section 2D1.1(b)(1) of the Guidelines directs a district
    court    to     increase    a    defendant’s         offense       level      by    two    levels
    “[i]f a dangerous weapon (including a firearm) was possessed.”
    The     enhancement       is     proper      when     the      weapon      at      issue       “was
    possessed in connection with drug activity that was part of the
    same    course     of   conduct        or    common    scheme       as     the      offense      of
    conviction,” United States v. Manigan, 
    592 F.3d 621
    , 628-29 (4th
    Cir.    2010)     (internal       quotation         marks      omitted),        even      in   the
    absence of “proof of precisely concurrent acts, for example, gun
    in hand while in the act of storing drugs, drugs in hand while
    in the act of retrieving a gun.”                      United States v. Harris, 
    128 F.3d 850
    ,     852     (4th     Cir.      1997)     (internal         quotation          marks
    omitted).        “[P]roof of constructive possession of the [firearm]
    is    sufficient,       and      the    Government        is    entitled           to   rely     on
    circumstantial evidence to carry its burden.”                            
    Manigan, 592 F.3d at 629
    .       The    defendant         bears     the     burden       to     show      that    a
    connection between his possession of a firearm and his narcotics
    offense is “clearly improbable.”                   
    Harris, 128 F.3d at 852-53
    .
    Jaramillo has failed to show that the connection between
    the    firearms     and    the        manufacture      of      marijuana        was     “clearly
    improbable,” and, on Anders review, “[t]here is nothing in the
    record    to     suggest       that    the   weapons        were    unconnected           to   the
    3
    offense.”        United States v. Gomez-Jiminez, 
    750 F.3d 370
    , 382,
    cert. denied, 
    135 S. Ct. 384
    (2014). To the contrary, the record
    affirmatively supports the connection: Jaramillo participated in
    the cultivation of marijuana at the stash house where he was
    arrested, and three loaded and readily-accessible weapons were
    found inside the stash house following his arrest.                     As such, the
    court’s factual finding that the weapons were connected to the
    drug offense was not clearly erroneous.
    In   accordance     with     Anders,     we   have   reviewed      the   entire
    record for meritorious issues and have found none.                     Accordingly,
    we   affirm    Jaramillo’s       conviction     and   sentence.         This     court
    requires that counsel inform Jaramillo, in writing, of the right
    to petition the Supreme Court of the United States for further
    review.       If Jaramillo requests that a petition be filed, but
    counsel believes that such a petition would be frivolous, then
    counsel    may    move   in     this   court   for    leave    to     withdraw     from
    representation.        Counsel’s motion must state that a copy thereof
    was served on Jaramillo.           We dispense with oral argument because
    the facts and legal contentions are adequately expressed in the
    materials     before     this    court   and   argument       would    not   aid    the
    decisional process.
    AFFIRMED
    4
    

Document Info

Docket Number: 14-4929

Citation Numbers: 615 F. App'x 792

Filed Date: 9/10/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023