FILED
United States Court of Appeals
Tenth Circuit
June 9, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-1462
(D. Ct. No. 1:08-CR-00519-REB-1)
ISMAEL DOMINGUEZ, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Circuit Judge, CUDAHY,† and TACHA, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Defendant-appellant Ismael Dominguez pleaded guilty to possession of a firearm
by a prohibited person in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) and possession
of methamphetamine in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C). He was
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
†
Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of
Appeals for the Seventh Circuit, sitting by designation.
sentenced to 92 months’ imprisonment. Mr. Dominguez maintains his sentence is
procedurally unreasonable because the district court improperly applied the offense level
enhancement for possession of a firearm in connection with another felony under United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2K2.1(b)(6). He also
alleges the district court failed to make specific findings at sentencing as required by Fed.
R. Crim. P. 32. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
In early 2008, special agents with the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) began investigating Mr. Dominguez after a confidential informant
(“CI”) informed them that Mr. Dominguez illegally possessed firearms. The CI
subsequently arranged several meetings with Mr. Dominguez to discuss and purchase
firearms and narcotics.
On April 25, 2008, the CI made a controlled purchase of 1.7 grams of
methamphetamine from Mr. Dominguez in Evans, Colorado. Then, on May 7, the CI
purchased a .41 caliber revolver from Mr. Dominguez while ATF special agents
conducted electronic surveillance. During the May 7 sale, the CI asked Mr. Dominguez
about purchasing more methamphetamine, and Mr. Dominguez responded that “real good
stuff came in” but that it would take a while for him to get it.
On July 2, the CI and ATF Special Agent Mark Feltz traveled to an apartment
complex parking lot to purchase another firearm and methamphetamine from Mr.
Dominguez. Agent Feltz remained in the car while the CI joined Mr. Dominguez in
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another vehicle. The CI eventually rejoined Agent Feltz having purchased 1.4 grams of
methamphetamine. He also told Agent Feltz that Mr. Dominguez had a “strap” (i.e., a
firearm) sitting next to him in the car. Mr. Dominguez told the CI he was nervous about
selling the firearm because a resident of the apartment complex was watching him. Later,
during Mr. Dominguez’s sentencing hearing, the district court would hear testimony from
another special agent who had discussed this transaction with the CI.
On January 2, 2009, Mr. Dominguez was charged in an eight-count superseding
indictment with weapons and drug violations. Pursuant to a plea agreement, Mr.
Dominguez pleaded guilty to one count of being a felon in possession of a firearm (the
May 7 transaction) and one count of possession with intent to distribute
methamphetamine (the April 25 transaction); all other counts were dismissed. The
probation office prepared a Presentence Investigation Report (“PSR”), recommending a
four-level increase in Mr. Dominguez’s offense level pursuant to U.S.S.G. § 2K2.1(b)(6).
The PSR author based the recommendation on the CI’s report that he saw a firearm in Mr.
Dominguez’s possession during the July 2 purchase of methamphetamine1 and on an
alleged statement by Mr. Dominguez to the CI during the April 25 sale of drugs that he
was “always armed.”
Mr. Dominguez objected to the recommended four-level enhancement. He did not
dispute that he had the firearm with him on July 2, nor did he dispute that he told the CI
1
Although Mr. Dominguez did not plead guilty to, and was not convicted of, the
July 2 transaction, he does not dispute that it was properly considered by the district court
during sentencing as “relevant conduct” under U.S.S.G. § 1B1.3.
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he was “always armed.” Rather, he argued that on July 2 he did not possess the firearm
“in connection with” the sale of methamphetamine. He contended that he brought the
weapon at the CI’s request to barter its sale and that the firearm was not intended to
facilitate the methamphetamine transaction.
At sentencing, the district court heard testimony from ATF Special Agent Shane
Messner regarding the reliability of the CI and his statements to Agent Messner about the
July 2 sale of drugs and the gun that Mr. Dominguez possessed at that time. Based on
Agent Messner’s testimony, the court overruled Mr. Dominguez’s objection to the §
2K2.1(b)(6) enhancement, stating that “on July 2, 2008, the defendant possessed a .357
caliber revolver during and in connection with the drug-related felony offense.”
Ultimately, the district court sentenced Mr. Dominguez to 92 months’ imprisonment.
Mr. Dominguez now appeals, contending that the district court improperly applied
the four-level enhancement when calculating his sentence and failed to make findings as
required under Fed. R. Crim. P. 32.
II. DISCUSSION
A. Enhancement for Firearm Possession in Connection with Another Felony
On appeal, Mr. Dominguez argues that his sentence is procedurally unreasonable
because the district court erred in increasing his base offense level pursuant to §
2K2.1(b)(6). A sentence is procedurally unreasonable if the district court improperly
calculates the applicable Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).
In determining whether the district court properly applied the challenged enhancement,
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we review the district court’s legal conclusions de novo and its factual findings for clear
error. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). “[I]n reviewing the
court’s decision to apply an enhancement, we view the evidence and inferences therefrom
in the light most favorable to the district court’s determination.” United States v. Beltran,
571 F.3d 1013, 1020 (10th Cir. 2009) (quotations omitted).
A four-level enhancement is appropriate under § 2K2.1(b)(6) “[i]f the defendant
used or possessed any firearm or ammunition in connection with another felony offense.”
The commentary to § 2K2.1 clarifies the meaning of “in connection with.”2 Application
Note 14 states that the enhancement applies “if the firearm or ammunition facilitated, or
had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1 cmt. 14(A).
Moreover, when the other felony offense is a drug offense, the provision applies if “a
firearm is found in close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” Id. cmt. 14(B); see also United States v. Bunner, 134 F.3d 1000, 1006
(10th Cir. 1998) (“[A] weapon’s proximity to narcotics may be sufficient to provide the
nexus necessary to enhance a defendant’s sentence under § [2K2.1(b)(6)].”).
Mr. Dominguez has never disputed that he was in possession of a firearm during
the July 2 sale of methamphetamine. He contends, however, that he only had the gun
because the CI had expressed an interest in purchasing it. Thus, Mr. Dominguez argues
2
“Commentary that explains a guideline ‘is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
that guideline.’” United States v. McClatchey, 316 F.3d 1122, 1127 (10th Cir. 2003)
(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).
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that because “[t]he firearm was present only to be sold” it was “unrelated” to the drug sale
and cannot form the basis of a § 2K2.1(b)(6) enhancement. We disagree. The fact that
Mr. Dominguez was considering selling the firearm does not eliminate its potential to
facilitate the sale of drugs. We have long recognized that firearms, particularly handguns,
“are a widely recognized tool of the drug dealer[’]s trade.” See, e.g., Bunner, 134 F.3d at
1006. Here, even if Mr. Dominguez intended to sell the firearm, it had the additional
potential to provide him with protection for as long as he retained it. Application Note 14
clearly requires the four-level enhancement in such circumstances.
Under the circumstances of this case, we conclude the presence of the firearm
during the sale of methamphetamine to the CI had, at a minimum, the potential to
facilitate the drug trafficking offense. Accordingly, the district court properly applied the
enhancement under § 2K2.1(b)(6) when calculating Mr. Dominguez’s sentence.
B. Rule 32 Findings
Mr. Dominguez also contends that the district court failed to make sufficient
findings of fact as required by Fed. R. Crim. P. 32. Because Mr. Dominguez failed to
raise this issue below, our review is for plain error. United States v. Cook, 550 F.3d 1292,
1297–98 (10th Cir. 2008). To satisfy plain-error review, Mr. Dominguez must show that
“there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
at 1298 (quotations omitted).
Rule 32 requires a district court to make specific findings concerning any factual
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matters in the PSR which are disputed. Fed. R. Crim. P. 32(i)(3)(B); see also United
States v. Cereceres-Zavala, 499 F.3d 1211, 1215–16 (10th Cir. 2007) (“[T]o invoke the
district court’s Rule 32 fact-finding obligation, the defendant is required to make specific
allegations of factual inaccuracy.”). “Arguments that challenge the district court’s
application of the guidelines to the facts and not the facts themselves do not trigger any
obligation on the part of the district court to make specific findings.” United States v.
Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (alterations and quotations
omitted).
Although Mr. Dominguez objected to the application of § 2K2.1(b)(6) during
sentencing, he did not contest the underlying facts supporting the enhancement. Indeed,
on appeal Mr. Dominguez concedes that he had a gun in his possession during the July 2
sale of methamphetamine. As discussed above, Mr. Dominguez maintains only that the
enhancement was wrongly applied because the gun was not being used “in connection
with” the sale of methamphetamine but was present only to be sold. Because Mr.
Dominguez challenged the application of the Guidelines to the facts rather than disputing
the facts underlying such application, the district court was not required to make Rule 32
findings. Accordingly, Mr. Dominguez has not shown that the district court erred.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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