United States v. Valdez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 10, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 06-8061
(D. Ct. No. 05-CR-243-D)
FELICIA MISTY VALDEZ, (D. Wyo.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, MURPHY, Circuit Judge, and LUNGSTRUM,
District Judge.†

Defendant-Appellant Felicia Valdez pleaded guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced her to

100 months’ imprisonment. Ms. Valdez appeals her sentence, arguing that it is both

procedurally and substantively unreasonable. We have jurisdiction under 28 U.S.C.

§ 1291 and we AFFIRM.

*
This order and judgment is not binding precedent except under the doctrines of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.
†
The Honorable John W. Lungstrum, Chief District Judge of the United States
District Court for the District of Kansas, sitting by designation.
 I. BACKGROUND

On July 2, 2005, Ms. Valdez drove Enrique Moncada and Eric Orozco from

Greeley, Colorado to Gillette, Wyoming, where, for the next five days, they sold several

ounces of methamphetamine and crack-cocaine to various individuals. On the return trip

on July 8, 2005, a deputy from the Campbell County, Wyoming Sheriff’s Department

stopped their vehicle and discovered that Ms. Valdez was carrying two guns in her purse.

The deputy also discovered $3000 in cash in the vehicle, as well as ammunition, scales,

tools, and a plastic bag containing a crystalline white residue. He arrested Ms. Valdez for

carrying concealed weapons.

That day, Agent Gary Sams of the Division of Criminal Investigations interviewed

Ms. Valdez after reading her her Miranda rights. During the interview, Ms. Valdez

discussed her role in the previous week’s drug trafficking activities as well as her

historical involvement with drugs. She revealed that she started dealing crack cocaine

when she was fourteen years old and that for two years she sold approximately one ounce

per day. For the six months immediately preceding her arrest, however, she had ceased

selling drugs and had transferred her customers to Mr. Orozco.

She then recounted that Mr. Moncada, Mr. Orozco, and Christina Starr went to her

house on July 2. While there, Mr. Moncada showed her a handgun he had bought three

weeks prior. Mr. Orozco told Ms. Valdez that he and Mr. Moncada had made four drug

runs to Gillette in the past six months and that they obtained their supply from a man

named “Jorge,” who was Ms. Valdez’s former supplier. Mr. Orozco told Ms. Valdez that

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he had two ounces of methamphetamine to sell (he showed her one ounce) and asked if

she would drive them and Ms. Starr first to Loveland, Colorado, and then to Gillette. She

agreed.

Once in Gillette, the foursome stopped at one individual’s house where Mr.

Orozco sold him one ounce of crack cocaine. Ms. Valdez assisted in counting the money.

They then went to Ms. Starr’s apartment where several other individuals dropped by to

buy drugs. Ms. Valdez witnessed many of these transactions. On July 4 or 5, Mr. Orozco

bought a gun affixed with a laser scope. For the next several days, Mr. Orozco and Mr.

Moncada bought and sold crack cocaine and methamphetamine. They, along with Ms.

Valdez, also used some of the drugs.

Ms. Valdez, Mr. Moncada, and Mr. Orozco were leaving Gillette on July 8 when

they were pulled over. While the deputy was approaching the vehicle, Mr. Moncada and

Mr. Orozco handed their guns to Ms. Valdez to put in her purse. She was arrested for

carrying concealed weapons.

Ms. Valdez was charged in a two-count indictment for being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count One), and for being an unlawful

user of a controlled substance in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(3) (Count Two). Ms. Valdez pleaded guilty to Count One in exchange for the

Government’s dismissal of Count Two.

At sentencing, the District Court applied the 2005 United States Sentencing

Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 2K2.1 to determine Ms. Valdez’s

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offense level. Because the court found that Ms. Valdez possessed a firearm in connection

with the commission of another offense—drug trafficking—it applied § 2K2.1(c)(1)(A)’s

cross-reference to § 2X1.1. Section 2K2.1(c)(1)(A) instructs a district court to apply the

offense level of the other offense—determined here with reference to § 2D1.1, the

Guideline applicable to drug trafficking offenses—if it is higher than that determined

under § 2K2.1. In this case, the drug trafficking offense did result in a higher offense

level, and the District Court sentenced Ms. Valdez at the bottom of the resulting

Guidelines range—100 months’ imprisonment. Ms. Valdez appeals that determination,

arguing that the District Court erred in applying § 2K2.1(c)(1)(A)’s cross-reference

provision. She also argues that her sentence is unreasonably long.

II. DISCUSSION

We review sentences imposed post-Booker for reasonableness. United States v.

Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Reasonableness has both procedural and

substantive components. See id. at 1055 (“[T]he reasonableness standard of review . . .

necessarily encompasses both the reasonableness of the length of the sentence, as well as

the method by which the sentence was calculated.” (emphasis omitted)). “In order to be

procedurally reasonable, a sentence must be reasoned, or calculated utilizing a legitimate

method.” United States v. Mateo, 471 F.3d 1162, 1166 (10th Cir. 2006) (quotations

omitted). Consequently, “sentences based on miscalculations of the Guidelines are

considered unreasonable because the manner in which they were determined was

unreasonable.” United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006) (quotations and

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alterations omitted). In considering the district court’s application of the Guidelines, we

review its factual findings for clear error and its legal determinations de novo. Kristl, 437

F.3d at 1054. We review substantive reasonableness by reference to the length of the

sentence imposed in relation to the sentencing factors set forth in 18 U.S.C. § 3553(a),

reviewing the district court’s decision for abuse of discretion. See United States v.

Garcia-Lara, — F.3d —, —, 2007 WL 2380991, at *1 (10th Cir. 2007) (explaining that

all of our post-Booker case law reviews “a district court’s sentence for abuse of

discretion, asking whether it is reasonable under the § 3553(a) factors”).

A. Application of U.S.S.G. § 2K2.1(c) Cross-Reference

Section 2K2.1 provides the appropriate Guideline for violations of 18 U.S.C.

§ 922(g). The cross-reference provision of § 2K2.1(c)(1) instructs that, “[i]f the

defendant used or possessed any firearm or ammunition in connection with the

commission or attempted commission of another offense” the district court must apply §

2X1.1 “in respect to that other offense, if the resulting offense level is greater than that

determined above.” 1 Ms. Valdez argues the cross-reference provision is inapplicable here

because she neither possessed nor used the guns in committing another offense. Rather,

she argues, she merely possessed the weapons immediately before the deputy approached

their vehicle and that at that time, the drug trafficking was complete. We find no error in

1
Section 2X1.1, in turn, instructs a district court to apply “the base offense level
from the guideline for the substantive offense, plus any adjustments from such guideline
for any intended offense conduct that can be established with reasonable certainty.”
U.S.S.G. § 2X1.1(a). The District Court found that the substantive offense was drug
trafficking and therefore determined Ms. Valdez’s offense level under § 2D1.1.

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the District Court’s determination that the Guideline provision applied.

At the sentencing hearing, Ms. Valdez, through her attorney, admitted that she

aided and abetted drug trafficking. See United States v. Buonocore, 416 F.3d 1124, 1134

(10th Cir. 2005) (treating admissions of defense counsel at sentencing as admissions of

the defendant). Specifically, counsel for Ms. Valdez acknowledged that “she did what

would commonly be considered as aiding [Mr. Orozco and Mr. Moncada] in [drug]

distribution as she counted money” and by participating in “additional activities.”

Further, Ms. Valdez admitted that during the course of the drug trafficking, the guns

“certainly were accessible[] and she had knowledge of their presence.” 2 The District

Court’s determination that she at least constructively possessed the firearms between July

3 and July 7, then, is not clearly erroneous. See United States v. Jameson, 478 F.3d 1204,

1209 (10th Cir. 2007) (stating that constructive possession exists when a person

“knowingly holds the power and ability to exercise dominion and control over a firearm”

and that the power to exercise dominion and control over a firearm may be inferred from

evidence that the defendant “has knowledge of and access to the weapons.” (alteration,

quotations, and citation omitted)). She also admitted that she had actual possession of the

guns on the return trip, while the threesome were carrying drug proceeds and other drug

paraphernalia in the car. Thus, the only remaining question is whether the District

2
Defense counsel further stated that the court is “not supposed to ignore” the fact
that the guns were as available to Ms. Valdez as to Mr. Orozco or Mr. Moncada, but that
“the question [the District Court] is being asked to consider is [whether] she used a
firearm in the commission of the offense.”

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Court’s determination that Ms. Valdez possessed the firearms “in connection with the

commission” of the drug trafficking offense is clearly erroneous. See United States v.

Sullivan, 967 F.2d 370, 376 (10th Cir. 1992) (“Whether [the defendant] used the weapon

in or during the commission of the crime of drug conspiracy is a question of fact.”). We

conclude that it is not.

A firearm that “facilitate[s] or ha[s] the potential to facilitate the underlying

[offense]” is possessed “in connection with” the underlying offense. See United States v.

Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998) (upholding enhancement under

§ 2K2.1(b)(5) when guns were located in close proximity to drugs). We have previously

noted that handguns are “widely recognized as a tool of the drug dealers trade,” see id.,

and that they are often used to facilitate an offense “by providing a means of protection or

intimidation,” see United States v. Constantine, 263 F.3d 1122, 1126 (10th Cir. 2001)

(upholding enhancement under § 2K2.1(b)(5) when defendant carried gun to burglary

because the gun “could provide [a] means of protection and intimidation” (quotation

omitted)); Sullivan, 967 F.2d at 376 (upholding enhancement under § 2K2.1(c)(1) when

“there was ample evidence . . . that the defendants’ access to firearms not only facilitated

their drug manufacturing efforts, but also provided the type of protection the defendants

believed they needed for their operation” (quotation omitted)); see also United States v.

Stobaugh, 420 F.3d 796, 802 (8th Cir. 2005) (stating that § 2K2.1(c) applies when the

firearm has “some purpose or effect with respect to the drug trafficking crime” and it

“facilitate[s], or [has] the potential of facilitating, the drug trafficking crime” (quotations

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omitted)). As such, a weapon’s close proximity to drugs may be sufficient to conclude

that the weapon was possessed in connection with a drug offense. See United States v.

Browning, 252 F.3d 1153, 1160 (10th Cir. 2001) (explaining that “proximity” of a

weapon and narcotics can demonstrate the connection necessary to support an

enhancement under U.S.S.G. § 2K2.1(b)(5)).

Ms. Valdez does not disagree with this general proposition. She contends,

however, that she never actually possessed a firearm in close proximity to drugs.

According to Ms. Valdez, Mr. Moncada and Mr. Orozco possessed the weapons from

July 2 through July 7 and that when she took actual possession of the guns on July 8,

there were no drugs left to protect. As noted above, however, the District Court

concluded that Ms. Valdez had constructive possession of the guns between July 2 and

July 7, a finding we cannot say is clearly erroneous. In any event, however, she had

actual possession of the guns while they were transporting drug proceeds and

paraphernalia back from Gillette to Greeley on July 8. Protecting drug proceeds is as

much a part of drug trafficking as protecting the drugs themselves. See United States v.

Robinson, 435 F.3d 1244, 1251 (10th Cir. 2006) (stating one factor relevant to whether

defendant possessed a firearm “in furtherance of” drug trafficking is “the proximity of the

firearm to drugs or drug profits” (emphasis added)); United States v. Garner, 338 F.3d

78, 81 (1st Cir. 2003) (“When guns and drugs are found together and a defendant has

been convicted of possession with intent to distribute, the gun, whether kept for

protection from robbery of drug-sale proceeds, or to enforce payment for drugs, may

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reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-trafficking

crime.”). It is therefore inaccurate to say that the drug trafficking activity had ceased on

July 7.

Ms. Valdez also contends that while the mere proximity of a weapon to drugs may

support an enhancement under § 2K2.1(b)(5), it does not support an enhancement under

§ 2K2.1(c)(1). Specifically, she maintains that the difference in wording between the two

subsections—(b)(5) applies when “the defendant used or possessed any firearm . . . in

connection with another felony offense,” whereas (c)(1) applies when “the defendant used

or possessed any firearm . . . in connection with the commission or attempted commission

of another offense,” (emphasis added)—suggests that (b)(5) may apply when firearms are

merely present during the drug trafficking, while (c)(1) may apply only when firearms are

actually used in connection with the commission of the other offense. To this end, she

notes that there is no evidence that anyone ever brandished either of the firearms to

protect the drugs or proceeds or ensure a sale of drugs, or otherwise “used” the firearms

in any way.

As an initial matter, we reject the weight Ms. Valdez gives to the phrase “in

connection with the commission . . . of another offense.” We acknowledge that the Ninth

Circuit in United States v. Myers, 112 F.3d 406 (9th Cir. 1997) reached the conclusion

that Ms. Valdez entreats us to reach here—namely, that for § 2K2.1(c)(1) to apply, the

defendant must have “used” the firearms to commit the other offense. In so doing,

however, the Ninth Circuit appears to have ignored the explicit language of (c)(1) stating

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that the enhancement applies if the defendant “used or possessed” the firearm, a

distinction we have previously noted is an “important” one. See Sullivan, 967 F.2d at 376

n.8.

Furthermore, under our case law, access to a firearm during a drug transaction,

even if the firearm was not brandished, may constitute “use” under § 2K2.1(c)(1). In

Sullivan, we interpreted an older version of § 2K2.1(c)(1) where the enhancement applied

“[i]f the defendant used the firearm in committing or attempting another offense.” Id. at

375-76 (citing U.S.S.G. § 2K2.1(c)(1) (1988)). That is, it did not allow for an

enhancement based on the defendant’s “possess[ion]” of a firearm as the enhancement

does now. Even so, we upheld application of the enhancement when the defendant

merely kept the weapon at his house, which was where he manufactured drugs. See id.;

see also Stobaugh, 420 F.3d at 802 (applying enhancement, based on possession, when

weapon was present at home from which defendant sold drugs); Myers, 112 F.3d at 412

(Rymer, J., concurring) (“[The defendant] referred to the firearm twice and said it was for

security. That’s ‘use’ to me.”).

Here, Ms. Valdez had constructive possession of two weapons during the course of

a trip for which the sole purpose was to traffic drugs. She had actual possession of the

guns while they were transporting the drug proceeds back from Gillette to Greeley. We

find no error in the District Court’s determination that she possessed the firearms in

connection with the commission of the drug trafficking offense.

Next, Ms. Valdez argues that application of § 2K2.1(c)(1) violates her Sixth

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Amendment right to have a jury determine the facts supporting a sentencing enhancement

beyond a reasonable doubt. For sentences imposed post-Booker, however, we have

consistently rejected this argument. See, e.g., United States v. Hall, 473 F.3d 1295, 1312

(10th Cir. 2007) (“After Booker, a constitutional violation lies only where a district court

uses judge-found facts to enhance a defendant’s sentence mandatorily under the

Guidelines, and not where a court merely applies such facts in a discretionary manner.”

(alteration, quotation, and emphasis omitted)). That is, post-Booker, the Guidelines are

discretionary and “a district court may continue to find facts . . . by a preponderance of

the evidence.” Id.

Ms. Valdez also argues that application of § 2K2.1(c)(1) amounts to non-

constitutional Booker error, which occurs when the sentencing court applies the

Guidelines in a mandatory, as opposed to discretionary, fashion. See United States v.

Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir. 2005) (en banc). It is clear in this

case, however, that the District Court knew that the Guidelines were merely discretionary.

Hence, the court did not commit non-constitutional Booker error.

B. Reasonableness of Sentence

Finally, Ms. Valdez argues that even if the District Court properly calculated the

Guidelines range, her sentence is nevertheless unreasonably long. She contends that she

is essentially being punished for Mr. Orozco’s and Mr. Moncada’s conduct and that her

participation in drug treatment and education programs at the time of her sentencing

warrants a sentence below the applicable Guidelines range.

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 As noted above, we consider whether the sentence imposed by the district court is

substantively unreasonable in light of the § 3553(a) factors, reviewing the district court’s

decision for abuse of discretion. See Garcia-Lara, — F.3d at —, 2007 WL 2380991, at

*1. A sentence within the properly calculated Guidelines range is entitled to a

presumption of reasonableness, see Kristl, 437 F.3d at 1054, an approach recently upheld

by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2462 (2007). The

defendant may rebut this presumption by demonstrating the sentence is “unreasonable

when viewed against the other factors delineated in § 3553(a).” Kristl, 437 F.3d at 1054.

The District Court’s sentence, 100 months’ imprisonment, is at the bottom of the

recommended guidelines range and is, thus, presumptively reasonable. To rebut this

presumption, Ms. Valdez merely asserts that the District Court’s findings were clearly

erroneous, an argument we already rejected, and that she is participating in drug treatment

and educational programs. She makes no reference to any of the other § 3553(a) factors.

Ms. Valdez underestimates her burden to rebut the presumption of reasonableness

accorded to her sentence, and she has not demonstrated that her sentence was otherwise

unreasonable when viewed against the other § 3553(a) factors. Therefore, resentencing is

not warranted in this case.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the District Court.

ENTERED FOR THE COURT,

Deanell Reece Tacha
Chief Circuit Judge

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