United States v. Alberto Torres , 529 F. App'x 303 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1554
___________
UNITED STATES OF AMERICA
v.
ALBERTO TORRES,
Appellant
_______________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 2-10-cr-00104-002
(Honorable Lawrence F. Stengel)
______________
Argued Pursuant to Third Circuit LAR 34.1(a)
June 13, 2013
Before: SCIRICA, HARDIMAN, VAN ANTWERPEN, Circuit Judges
(Filed: July 12, 2013)
Robert Epstein, Esq.
Brett G. Sweitzer, Esq. [ARGUED]
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Randall Hsia, Esq. [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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SCIRICA, Circuit Judge.
Alberto Torres pled guilty to conspiracy to distribute cocaine and distribution of
five kilograms or more of cocaine. A loaded handgun was found in Torres’ apartment.
The District Court concluded the gun was connected to the conspiracy, increased Torres’
offense level by two under U.S.S.G. § 2D1.1(b)(1), and denied his motion for a two-level
decrease under the safety valve provision found at U.S.S.G. § 5C1.2. We will affirm.
I.
Torres was a member of a drug distribution conspiracy that distributed between
150 and 200 kilograms of cocaine from 2007 to 2010. In March 2007, Torres and co-
defendant Jaime Duran met with a cooperating defendant, KW, in St. Louis, Missouri.
Torres and Duran agreed to supply KW, who was from Philadelphia, with cocaine.
Torres, who was from California, was designated the East Coast representative for the
conspiracy and rented an apartment in Bear, Delaware, later moving to Wilmington.
Torres supplied KW with cocaine by storing the cocaine in his car and exchanging
vehicles with KW. KW was arrested in early 2009.
After KW’s arrest, Duran contacted KW’s wife in an attempt to collect money for
cocaine supplied to KW. The FBI sent in a cooperating informant (“CI”) who pretended
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to be KW’s cousin. Torres met CI and an undercover FBI agent at a Delaware parking
lot, and Torres placed a Home Depot storage box containing 23.94 kilograms of cocaine
into the undercover agent’s vehicle. Two days later, Torres and his co-conspirators were
arrested.
Torres gave the FBI permission to search his apartment in Wilmington. Agents
recovered a loaded .45 caliber pistol and box of ammunition, both hidden underneath a
sofa cushion in a bedroom. Torres admitted that the pistol was his, and it is undisputed he
owned the pistol legally. Agents also recovered Sharpies, rubber bands, latex gloves, and
trash bags, which the government contends are drug packaging materials.
Torres pled guilty to conspiracy to distribute cocaine (21 U.S.C. § 846) and
distribution of five kilograms or more of cocaine (21 U.S.C. § 841(a)(1), (b)(1)(A)). At
sentencing, Torres objected to a two-level increase to his offense level under U.S.S.G. §
2D1.1(b)(1), which applies “[i]f a dangerous weapon (including a firearm) was
possessed.” Torres argued he owned the gun for personal protection and that it had no
connection to the drug conspiracy. There was no evidence Torres ever carried the gun
during any drug transaction. The District Court denied the objection.
Torres also argued he was eligible for a two-level reduction under the safety valve
provision, U.S.S.G. §§ 2D1.1(b)(16) and 5C1.2. To be eligible for the safety valve,
Torres must not have possessed a weapon in connection with the drug trafficking offense.
The court concluded Torres did not meet this requirement not only because the gun was
possessed in an apartment that Torres only had as part of the drug conspiracy, but also
because items that could be used to package drugs were found nearby. The court
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sentenced Torres to 180 months’ imprisonment, varying down from the Guideline range
of 210-262 months. Torres appeals.1
II.
Torres contends the District Court erred by applying the two-level increase to his
offense level under § 2D1.1(b)(1). He argues the government was required to prove a
connection between the firearm and the drug trafficking offense and that the government
failed to meet its burden because there was no evidence he ever carried the gun during
any transaction or that any drugs were ever stored or packaged in the apartment where the
firearm was kept.
U.S.S.G. § 2D1.1 provides the base levels and enhancements for drug trafficking
crimes. Section 2D1.1(b)(1) states: “If a dangerous weapon (including a firearm) was
possessed, increase by 2 levels.” The Application Note explains “[t]he enhancement
should be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense. For example, the enhancement would not be
applied if the defendant, arrested at the defendant’s residence, had an unloaded hunting
rifle in the closet.” U.S.S.G. § 2D1.1 cmt. n.11.2
The weapons enhancement will apply if the government proves that the firearm
was present during the offense, and that it is not “clearly improbable that the weapon was
connected with the offense.” United States v. Thornton, 306 F.3d 1355, 1357 (3d Cir.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
In the 2011 version of the Guidelines, under which Torres was sentenced, this
explanation is located in Application Note 3.
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2002) (quotation omitted).To meet the first step, “the prosecution need only prove that
the defendant possessed the weapon during the currency of the offense, not necessarily
that he actually used it in perpetrating the crime or that he intended to do so.” United
States v. McDonald, 121 F.3d 7, 10 (1st Cir. 1997); see also United States v. Zavalza-
Rodriguez, 379 F.3d 1182, 1185 (10th Cir. 2004) (requiring “a temporal and spatial
relation . . . between the weapon, the drug trafficking activity, and the defendant”
(quotation omitted)). To determine whether it was not “clearly improbable” that the
firearm was connected to the offense, we consider (1) “the type of gun involved, with
clear improbability less likely with handguns than with hunting rifles”; (2) “whether the
gun was loaded”; (3) “whether the gun was stored near the drugs or drug paraphernalia”;
and (4) “whether the gun was accessible.” United States v. Drozdowski, 313 F.3d 819,
822-23 (3d Cir. 2002). We review the application of the enhancement for clear error.
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010); United States v. Cooper,
274 F.3d 230, 245 (5th Cir. 2001) (“This is a factual finding and thus reviewed for clear
error.”).
Torres’ challenge focuses on the first step. He argues there is no evidence the gun
was “present” during any drug trafficking because he never carried it during any
transaction and no trafficking activity took place in the apartment. But Torres participated
in a years-long conspiracy. The conspiracy was based in California and Torres kept the
Delaware apartment solely for the purpose of facilitating the conspiracy. He only
travelled to Delaware to distribute drugs. The District Court could reasonably infer the
apartment was a key locus of the conspiracy and thus the gun had “a temporal and spatial
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relation” to the conspiracy. Zavalza-Rodriguez, 379 F.3d at 1185 (quotation omitted).
Under the four factors of Drozdowski, it is not clearly improbable the gun was
connected to the offense. The gun was a handgun and was loaded. And being stored
under a couch cushion made it easily accessible. Accordingly, we see no clear error. 3
III.
Torres also challenges the court’s denial of his motion for a two-level decrease in
offense level under the safety valve provision of U.S.S.G. § 2D1.1(b)(16). That provision
applies if the defendant meets the five criteria of U.S.S.G. § 5C1.2(a): (1) the defendant
does not have more than one criminal history point; (2) the defendant did not use
violence or possess a dangerous weapon “in connection with the offense”; (3) the offense
did not result in death or serious bodily injury; (4) the defendant did not have a leadership
role in the offense; and (5) the defendant truthfully provided all information about the
offense to the government. The District Court rejected Torres’ motion based on the
second requirement, finding he “possessed the gun in . . . connection” with the drug
conspiracy. Our review is for clear error. United States v. Richards, 674 F.3d 215, 219-
220 (3d Cir. 2012). For the reasons discussed above, we will not upset the court’s
finding.
IV.
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Torres argues the District Court interpreted the Guideline to only require possession of
the firearm, and thus never made the necessary finding of a connection between the gun
and the conspiracy when ruling on the § 2D1.1(b)(1) enhancement. Even if so, the court
found Torres possessed the firearm in connection with the conspiracy when ruling on the
safety valve provision, a finding that satisfies the government’s burden under §
2D1.1(b)(1). See United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005) (“We may
affirm on any ground supported by the record.”).
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For the foregoing reasons, we will affirm the judgment and sentence of the District
Court.
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