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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13378
Non-Argument Calendar
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D.C. Docket No. 1:19-cr-20173-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN GUILLERMO CUARTAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 21, 2021)
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Before JILL PRYOR, BRANCH and LUCK, Circuit Judges.
PER CURIAM:
Adrian Guillermo Cuartas appeals his 151-month sentence, imposed after he
pled guilty to one count of possession with intent to distribute heroin. Cuartas
argues that the district court erred in applying a two-level enhancement for
possession of a dangerous weapon because he did not have a firearm with him
during the drug transaction. See U.S.S.G. § 2D1.1(b)(1). After careful review, we
affirm Cuartas’s sentence.
I. BACKGROUND
The Drug Enforcement Administration (“DEA”) learned from a confidential
source (“CS”) that Cuartas was a heroin and cocaine distributor operating in the
Tampa, Florida area.1 The CS contacted Cuartas to discuss buying and selling
heroin and cocaine. Cuartas met with the CS in Miami, Florida to buy 10
kilograms of cocaine, but the transaction fell through because Cuartas did not have
the agreed-upon sum of money. Instead, the CS gave Cuartas about one gram of
cocaine as a sample of what he could provide, and the next day Cuartas gave the
CS a less-than four-gram sample of heroin.
1
The facts here come from the unobjected-to facts contained in the presentence
investigation report.
2
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Cuartas and the CS continued discussing selling cocaine and heroin to each
other. A few weeks later, the two met to finalize the details of the exchange, and
Cuartas told the CS that he had heroin in his hotel room. About two hours later,
Cuartas met the CS in a parking lot and showed him multiple kilograms of heroin
hidden in his car. The CS instructed Cuartas to follow him to a warehouse to
complete the transaction. Upon arriving at the warehouse, Cuartas removed 3.5
kilograms of heroin from his backpack. Law enforcement then appeared and
arrested Cuartas.
After his arrest, Cuartas consented to a search of his hotel room, where
officers found a stolen and loaded nine-millimeter handgun and about $4,000 in
cash. No drugs were found in the hotel room. Cuartas also disclosed that he was
advanced the heroin in San Antonio, Texas and was expected to deposit the
payment later. Cuartas thought he could make more money selling cocaine, so he
planned to exchange the heroin for cocaine, sell the cocaine at a higher price, pay
for the heroin, and pocket the difference. Cuartas also stated that he had been
selling about one kilogram of heroin every month in the Tampa area over the past
year.
Cuartas was charged with two counts of possession with intent to distribute
heroin, in violation of
21 U.S.C. § 841(a)(1) (Counts 1 and 2), and possession of a
firearm and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1)
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(Count 3). He pled guilty to Count 2, and the government dismissed the remaining
counts.
Before sentencing, the probation office prepared a presentence investigation
report (“PSR”). The PSR calculated Cuartas’s total offense level as 31, which
included a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of
a dangerous weapon. Based on his total offense level and criminal history
category of IV, Cuartas’s recommended range under the Sentencing Guidelines
was 151 to 188 months’ imprisonment.
Cuartas objected to the PSR’s application of the two-level dangerous
weapon enhancement, arguing that the firearm found in his hotel room was neither
present at nor connected with the offense. Cuartas reiterated his objection at the
sentencing hearing. The district court overruled the objection, noting that the
enhancement applied “even if he had the gun to protect the money . . . [and] it’s
reasonable to assume in this case that the money came from drug trafficking.”
Doc. 35 at 4. 2 The district court adopted the PSR’s guidelines range and sentenced
Cuartas to 151 months’ imprisonment, the low-end of his guidelines range.
This is Cuartas’s appeal.
2
“Doc.” numbers refer to the district court’s docket entries.
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II. DISCUSSION
Cuartas argues that the district court erred in applying the dangerous weapon
enhancement under U.S.S.G. § 2D1.1(b)(1) because the government presented no
evidence that he possessed a firearm during the drug offense. Cuartas asserts there
was no evidence that he carried a gun during any of his meetings with the CS,
including the transaction for which he was convicted, or that the gun found in his
hotel room was connected to the drug offense. We disagree.
In evaluating a district court’s imposition of an offense-level enhancement
pursuant to § 2D1.1(b)(1), we review the court’s findings of fact for clear error and
its application of the Sentencing Guidelines de novo. United States v. Pham,
463
F.3d 1239, 1245 (11th Cir. 2006). Whether a firearm was possessed in connection
with a crime is a factual finding we review for clear error. United States v.
Stallings,
463 F.3d 1218, 1220 (11th Cir. 2006). A factual finding is clearly
erroneous when, upon review of the evidence, we are left with “the definite and
firm conviction that a mistake has been committed.” United States v. Barrington,
648 F.3d 1178, 1195 (11th Cir. 2011) (internal quotation marks omitted).
Although clear error review is deferential, “a finding of fact must be supported by
substantial evidence.” United States v. Robertson,
493 F.3d 1322, 1330 (11th Cir.
2007).
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The Sentencing Guidelines provide for a two-level enhancement in drug
cases “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). The § 2D1.1(b)(1) enhancement applies “if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” Id. § 2D1.1 cmt. n.11(A). To justify the enhancement, the government
must either establish by a preponderance of the evidence that the firearm was
present at the site of the charged conduct or prove that the defendant possessed a
firearm during conduct relevant to the offense of conviction. Stallings,
463 F.3d at
1220. Relevant conduct includes acts “that were part of the same course of
conduct or common scheme or plan as the offense of conviction.” United States v.
Smith,
127 F.3d 1388, 1390 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3(a)(2)). If
the government meets its burden, then the burden shifts to the defendant to
demonstrate “that a connection between the weapon and the offense was clearly
improbable.” United States v. Audain,
254 F.3d 1286, 1289 (11th Cir. 2001)
(internal quotation marks omitted).
We have recognized that proximity between guns and drugs alone is
sufficient for the government to meet its initial burden under § 2D1.1(b)(1).
United States v. Carillo-Ayala,
713 F.3d 82, 91–92 (11th Cir. 2013). Relatedly,
the government is not required to prove that the firearm was used to facilitate the
drug transaction, Audain,
254 F.3d at 1289–90, or was possessed during the drug
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transaction, United States v. Hunter,
172 F.3d 1307, 1308–10 (11th Cir. 1999), for
the enhancement to apply. In United States v. Hunter, for example, we affirmed
the application of the § 2D1.1(b)(1) enhancement where the firearm at issue was
not seized during the defendant’s arrest or the seizure of drugs. See id. (affirming
imposition of dangerous weapon enhancement where a gun was found in
defendant’s home two days after his arrest, based on evidence that drug
paraphernalia was also found in defendant’s home). Of course, the presence of a
firearm cannot be merely coincidental, see Stallings,
463 F.3d at 1220, but
evidence that a defendant used or could have used a firearm to protect his criminal
activity is sufficient, see Carillo-Ayala, 713 F.3d at 91–92.
We discern no clear error in the district court’s application of the
§ 2D1.1(b)(1) enhancement. Cuartas argues that the enhancement does not apply
because there was no evidence that he carried the firearm during his dealings with
the CS. However, the gun was found in Cuartas’s hotel room—the same room
where, just two hours before the charged drug transaction, Cuartas stored the 3.5
kilograms of heroin he planned to sell to the CS. Although it is true that the
district court did not rely on this fact, we can affirm the district court on any
ground supported by the record—even if that ground was not considered or
advanced in the district court. See United States v. Gill,
864 F.3d 1279, 1280 (11th
Cir. 2017). This evidence demonstrates sufficient proximity between the firearm
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and the charged conduct to meet the government’s initial burden under
§ 2D1.1(b)(1). See Carillo-Ayala, 713 F.3d at 91–92; Hunter,
172 F.3d at 1308–10
(11th Cir. 1999).
Cuartas cites Stallings to argue that the government failed to meet its burden
under § 2D1.1(b)(1), but his reliance is misplaced. In Stallings, we held that the
government failed to meet its burden that the dangerous weapon enhancement
applied where the only evidence presented was that three handguns were found in
the defendant’s residence, where no activities related to the underlying offense had
occurred. Stallings, 463 F.3d at 1220–21. Here, there is more evidence than mere
possession of a firearm at the defendant’s residence, unconnected with any other
evidence of drug trafficking. Cuartas admitted that he kept the heroin in his hotel
room where the gun was ultimately found. Thus, the government met its initial
burden under § 2D.1.1(b)(1), and the burden shifted to Cuartas to prove that it was
“clearly improbable” that the firearm was connected to the offense. Audain,
254
F.3d at 1289.
Cuartas argues that the connection between the weapon and the offense was
clearly improbable because he did not carry the gun with him to the warehouse.
Had the gun been connected with the offense, Cuartas reasons, he “surely would
have had it with him” during the drug transaction. Appellant’s Br. at 19. Cuartas
further contends that the presence of cash in his hotel room where the gun was
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recovered did not support a connection between the gun and the offense because
the transaction at issue was a “heroin-for-cocaine transaction, not a cash-for-drugs
transaction.”
Id. at 17–18 (emphasis omitted). We reject Cuartas’s arguments.
First, that Cuartas did not carry the firearm during the drug transaction does
not mean it was clearly improbable that the gun was connected to the offense. See
United States v. Trujillo,
146 F.3d 838 (11th Cir. 1998). In United States v.
Trujillo, we upheld the application of the § 2D1.1(b)(1) enhancement where the
defendant argued, as Cuartas does here, that the connection between his gun and a
drug transaction was clearly improbable because he left the gun in a separate office
from where the drug transaction occurred. Id. at 847. And, as noted above, we
have affirmed the imposition of the enhancement even where the firearm was not
possessed during the drug transaction. See Hunter,
172 F.3d at 1308–10.
Second, the district court’s conclusion that it was reasonable to assume the
money found in Cuartas’s hotel room was connected to drug trafficking was not
clearly erroneous. See United States v. Ladson,
643 F.3d 1335, 1341 (11th Cir.
2011) (“Under clear error review, the district court’s determination must be
affirmed so long as it is plausible in light of the record” (internal quotation marks
omitted)). Cuartas possessed a significant quantity of heroin and admitted that he
had been selling one kilogram of heroin every month for the last year. Given this
evidence, it was plausible for the district court to conclude it was not clearly
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improbable that the gun was related to the drug offense given the presence of
$4,000 in cash where the gun was found. See
id.
Thus, we conclude that the district court did not err in applying the two-level
dangerous weapon enhancement pursuant to § 2D1.1(b)(1).
AFFIRMED.
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