UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CUAUHTEMO DOMINGUEZ-YANES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-65)
Argued: October 27, 2006 Decided: January 8, 2007
Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William Lindsay Osteen, Jr., ADAMS & OSTEEN, Greensboro,
North Carolina, for Appellant. Sandra Jane Hairston, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cuauhtemo Dominguez-Yanes appeals the 114-month sentence he
received after his guilty plea to possession of 487 grams of
methamphetamine with intent to distribute, 21 U.S.C.A. § 841(a),
(b)(1)(B) (West 1999 & Supp. 2006). He contends that the district
court clearly erred in giving him a two-level enhancement under
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2004) for
possession of a dangerous weapon. We affirm.
I.
In January 2005, during an investigation into
methamphetamine sales in western North Carolina, Jose Olivas, a/k/a
“Guero,” identified Cuauhtemo Dominguez-Yanes as his source for
about 1200 grams of methamphetamine he had purchased during the
previous two months. Olivas said that their transactions usually
took place at a mobile home, or trailer, at 4989 Colon Road in
Sanford, North Carolina, and that there was usually another man
with Dominguez-Yanes during the sales. Olivas placed a monitored
call to Dominguez-Yanes and ordered “the usual.” The defendant
agreed to meet the drug purchaser "at the trailer." (J.A. 14) A
short time later, surveillance officers saw Dominguez-Yanes and
Jose Aguirre-Arizaga arrive at the trailer and walk around to the
back with a white bucket. Dominguez-Yanes set the bucket down and
they waited until Olivas arrived. They then walked back to the
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front of the trailer, where they were arrested. The bucket
contained 449.7 grams of methamphetamine.
The officers conducted a security search of the trailer,
and found a loaded .50 caliber1 handgun in the kitchen and a UPS
shipping box addressed to Aguirre-Arizaga in the living room. Near
the front steps was a plastic bag containing bills addressed to
Aguirre-Arizaga at that address, as well as discarded drug
wrappers. Further investigation revealed that the electricity had
been turned off, but the service had been in Aguirre-Arizaga’s
name. Both Dominguez-Yanes and Aguirre-Arizaga pleaded guilty to
possession of 487 grams of methamphetamine with intent to
distribute on January 20, 2005, the date of their arrest.
Over Dominguez-Yanes’s objection, the district court
decided that it was not clearly improbable that the gun was
connected to the drug offense, because Dominguez-Yanes and Aguirre-
Arizaga used the trailer as a location for drug sales, Aguirre-
Arizaga controlled the trailer, and the gun was, therefore,
accessible to Dominguez-Yanes. The court determined that the drug
sales were a jointly undertaken activity between Dominguez-Yanes
and Aguirre-Arizaga, based in part on the fact that Aguirre-Arizaga
accompanied Dominguez-Yanes to the drug sale on the day they were
arrested. The court adopted the guideline calculation in the
presentence report, which recommended an advisory guideline range
1
This may also appear in the record as .40 cal.
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of 108-135 months. The court imposed a sentence of 114 months
imprisonment.
On appeal, Dominguez-Yanes contends that the government
failed to show that he or his co-defendant, Aguirre-Arizaga,
possessed the gun. He points out that there was no evidence that
any of the prior drug sales took place inside the trailer, that the
electricity to the trailer had been turned off on January 20, 2005,
or that he or Aguirre-Arizaga was in possession of the trailer on
that date. He maintains that the presence of mail addressed to
Aguirre-Arizaga inside the trailer was insufficient to establish
possession of the firearm, either actual or constructive, by either
of them.
II.
A district court’s decision to impose an enhancement for
possession of a dangerous weapon will be upheld unless clearly
erroneous. United States v. Apple, 915 F.2d 899, 914 (4th Cir.
1990)(“The determination whether a firearm was present in the sense
that it justified enhancement is a factual determination subject to
clearly erroneous review.”)2
2
The defendant acknowledged at the sentencing hearing that the
gun was found in the trailer which was leased or rented by Yanes'
co-defendant. This was the same trailer at which location the set-
up drug sale took place.
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III.
A two-level enhancement should be applied if a dangerous
“weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1(b)(1),
comment. (n.3). “[T]he proximity of guns to illicit narcotics can
support a district court’s enhancement of a defendant’s sentence”
under this guideline. United States v. Harris, 128 F.3d 850, 852
(4th Cir. 1997). Moreover, “[u]nder relevant conduct principles,
the enhancement applies when the weapon 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.
McAllister, 272 F.3d 228, 233-34 (4th Cir. 2001) (citation and
internal quotation omitted). A defendant is also accountable under
relevant conduct principles for conduct of others involved with him
in a jointly undertaken criminal activity as long as those acts are
reasonably foreseeable to him. USSG § 1B1.3(a)(1)(B).
The evidence established that Dominguez-Yanes had
conducted previous drug sales at the trailer, and that Aguirre-
Arizaga, who accompanied him, had at some point been responsible
for electrical service there and had received mail there. The
government contends that this evidence supports the court’s finding
that the presence of the gun inside the trailer was at least
reasonably foreseeable to Dominguez-Yanes, and that it was not
clearly improbable that the gun was connected to the drug offense.
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United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994)
("[A]bsent evidence of exceptional circumstances, it is fairly
inferable that a co-defendant's possession of a dangerous weapon is
foreseeable to a defendant with reason to believe that their
collaborative criminal venture includes an exchange of controlled
substances for a large amount of cash.”) (internal quotations
omitted).
We note that there was no evidence presented to show that
Aguirre-Arizaga was not still in possession of the trailer. Thus,
even though the electricity had been turned off, he might still
have been renting it. Moreover, Dominguez-Yanes told the probation
officer that he and Aguirre-Arizaga were living at the trailer at
the time of their arrest. Although his statement, contained in the
presentence report, apparently did not influence the district
court’s decision, Dominguez-Yanes did not object to the inclusion
of this statement in the presentence report or seek to correct it.
On balance, we conclude that the district court did not clearly err
in finding that the enhancement was warranted.
The judgment of the district court is accordingly
AFFIRMED.
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