Case: 09-40627 Document: 00511202863 Page: 1 Date Filed: 08/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2010
No. 09-40627
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR M. ZAPATA-LARA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hector Zapata-Lara appeals the application of a sentence enhancement for
possession of a dangerous weapon. Because the district court failed to find ei-
ther that Zapata-Lara possessed the weapon or that a co-conspirator possessed
the weapon and that that possession was foreseeable to Zapata-Lara, we vacate
the sentence and remand for resentencing.
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No. 09-40627
I.
Zapata-Lara pleaded guilty to conspiring to possess with the intent to dis-
tribute cocaine under 21 U.S.C. §§ 841 and 846 for his role as the broker in a
drug deal between Victor Molano and Jesus Cavazos. The factual basis of the
guilty plea provided that Zapata-Lara arranged for Molano and a confidential
informant to obtain cocaine from a truck at Cavazos’s mother’s house.1 The
presentence report (“PSR”) reflects that Zapata-Lara met at this location with
the buyer and seller during their inspection of the cocaine and the negotiations
for the sale of the drugs. Law enforcement officers arrived and discovered over
five kilograms of cocaine under the hood of the truck, which was parked in the
driveway of the residence and registered to a Juan Carlos Cazares. A subse-
quent search2 revealed a loaded handgun about fifteen feet from the drug trans-
action inside a small refrigerator in the garage.
The PSR recommended, in relevant part, a two-level sentence enhance-
ment for possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1).
The court adopted the PSR, reasoning that “[a] gun is a well-accepted, well-
known tool of the trade” and that “[i]t’s been clearly established by precedent
that . . . at an event such as this involving the conveyance of five-and-a-half-kilos
of cocaine . . . a gun would be present.”
II.
Zapata-Lara challenges the enhancement because the government failed
to establish either that he was personally responsible for the gun or that posses-
sion of it was reasonably foreseeable to him, especially in light of his limited role
in the offense. “Because the decision to apply § 2D1.1(b)(1) is a factual one, we
1
The record indicates that Cavazos resided at the house.
2
It is not evident, from the record, just when the subsequent search occurred. That is
to say, nothing indicates whether it was akin to a second sweep of the area during the initial
search or was a separate search that took place at another time.
2
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No. 09-40627
review only for clear error.” United States v. Eastland, 989 F.2d 760, 769 (5th
Cir. 1993); see also United States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996)
(same). Nonetheless, “we examine de novo the district court’s purely legal appli-
cation of the sentencing guidelines.” United States v. Hooten, 942 F.2d 878, 881
(5th Cir. 1991). Zapata-Lara’s argument does not concern the specifics of the
factfinding, but, rather, whether the facts found are legally sufficient to support
the enhancement. Our review, then, is de novo.
Before a sentencing court can apply § 2D1.1(b)(1), the government must
prove weapon possession by a preponderance of the evidence. Id. It can do that
in two ways. Id. at 882. First, it can prove that the defendant personally pos-
sessed the weapon, by showing a temporal and spatial relationship of the wea-
pon, the drug trafficking activity, and the defendant. Id. To make that showing,
the government must provide evidence that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
transaction occurred. Id.
“Alternatively, when another individual involved in the commission of an
offense possessed the weapon, the government must show that the defendant
could have reasonably foreseen that possession.” Id. The guidelines hold a de-
fendant responsible for all reasonably foreseeable acts of the conspiracy.
U.S.S.G. § 1B1.3(a)(1)(B). Thus, a sentencing court may often “infer foreseea-
bility” from a coconspirator’s knowing possession of a weapon. Id. (citing United
States v. Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990)).
In Hooten, 942 F.2d at 881-82, the district court applied § 2D1.1(b)(1)
where a handgun was found on the back porch of a residence near a shed in
which amphetamine was being manufactured. At sentencing, the defendant
claimed no knowledge that the handgun existed or that a gun was involved in
the offense. Id. at 881. Noting that the district court had failed to make a find-
ing regarding the defendant’s objection, we remanded and instructed the court
to make an explicit finding as to whether the defendant personally possessed the
3
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No. 09-40627
pistol, or, if a coconspirator possessed it, whether the defendant reasonably could
have foreseen that possession. Id. at 881-82.
In Aguilera-Zapata, we addressed the application of § 2D1.1(b)(1) in light
of the relevant-conduct provision of § 1B1.3(a)(1). We held that because firearms
are “tools of the trade of those engaged in illegal drug activities,” a district court
“may ordinarily infer that a defendant should have foreseen a co-defendant’s
possession of a dangerous weapon, such as a firearm, if the government demon-
strates that another participant knowingly possessed the weapon while he and
the defendant committed the offense by jointly engaging in concerted criminal
activity involving a quantity of narcotics sufficient to support an inference of an
intent to distribute.” Aguilera-Zapata, 901 F.2d at 1215.
Here, the district court determined that the enhancement was applicable
because of the presence of a handgun. The court’s comments suggest a finding
of foreseeability based on Aguilera-Zapata, but the court never connected the
handgun to any particular co-participant. It is prerequisite that a coconspirator
knowingly possessed the weapon; only then can the court determine whether
there existed the required link between the non-possessing defendant and the
weapon by finding that the co-participant’s possession was foreseeable to the
defendant. Thus, because nothing in the record explicitly links the weapon to
any of Zapata-Lara’s coconspirators, he cannot be held derivatively responsible
for it.3
Furthermore, there appears to be nothing in the record to support the en-
hancement on the basis that Zapata-Lara personally possessed the weapon. The
PSR does not contain sufficient facts establishing a temporal and spatial rela-
tionship of the gun, the drug trafficking activity, and Zapata-Lara. As to the
3
We have no occasion to determine whether any such possession would have been fore-
seeable to Zapata-Lara, in light of his limited role in the transaction. See, e.g., United States
v. Ramos, 71 F.3d 1150, 1158 (5th Cir. 1995). That determination, if applicable, is left to the
district court on remand.
4
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No. 09-40627
spatial relationship, the gun was fifteen feet from Zapata-Lara and the drugs,
inside an appliance in another structure, and the activity took place on someone
else’s property. That situation is hardly a textbook case of possessing a danger-
ous weapon during the commission of a drug-trafficking offense.4
But even assuming that the PSR does adequately support a spatial con-
nection between the handgun and the offense, the PSR indicates that the hand-
gun was not discovered until a “subsequent search” of the premises was conduct-
ed. It is thus uncertain whether there was the necessary temporal connection
between the handgun and the offense.5 At any rate, our present concern is more
limited. We cannot be sure what rationale the court had in mind to support the
enhancement, based on its limited statement.
III.
We VACATE the sentence and REMAND for resentencing. If, on remand,
the district court determines that the weapon enhancement is applicable, it
should make the appropriate findings and state plainly the basis for its decision.
Cf. Hooten, 942 F.2d at 881. We express no view on what sentence the court
should impose on remand.
4
Cf. Castillo, 77 F.3d at 1498 (gun found in defendant’s house where drugs were
stored); United States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994) (gun found in defendant’s
bedroom); U.S.S.G. § 2D1.1, cmt. 3 (deciding that unloaded hunting rifle in closet does not
support enhancement).
5
We reject the government’s argument that Zapata-Lara has not shown that it was
plainly improbable that the handgun was connected to the offense. The defendant has that
burden only after the government has met its initial burden of proving a connection between
the handgun and the drug-trafficking activity. See United States v. Cooper, 274 F.3d 230,
245-46 & n.8 (5th Cir. 2001); see also U.S.S.G. § 2D1.1 cmt. 3 (discussing burden-shifting with
regard to the dangerous-weapon enhancement).
5