FILED
United States Court of Appeals
Tenth Circuit
November 18, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-2275
JOSE MAURICIO VARELA, a/k/a
Mauricio Varela, a/k/a Archie Varela,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-06-01022-RB-1)
Leon Schydlower, El Paso, Texas, for Defendant-Appellant.
Teresa L. Raymond, (Gregory J. Fouratt, United States Attorney, and Laura
Fashing, Assistant United States Attorney, Albuquerque, New Mexico, on the
brief), Assistant United States Attorney, Las Cruces, New Mexico, for Plaintiff-
Appellee.
Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant Jose Mauricio Varela a/k/a Mauricio Varela a/k/a Archie Varela
(“Varela”) was convicted by jury trial of being a felon in possession of multiple
firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court
sentenced Varela to 120 months’ imprisonment, the statutory maximum. Varela
appeals his sentence, alleging the district court committed procedural error when
it applied a cross reference in U.S.S.G. § 2K2.1(c)(1)(A) to calculate Varela’s
base offense level.
We have jurisdiction over Varela’s timely appeal pursuant to 28 U.S.C. §
1291, and affirm.
I
Pursuant to the execution of arrest and search warrants, police officers
found methamphetamine and two handguns inside a vehicle Varela was driving,
and additional firearms, explosive-related items, narcotics, and drug paraphernalia
at Varela’s home. Varela was charged in a three-count indictment of: (1)
possession with intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (2) carrying firearms during and
in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
and (3) being a felon in possession of multiple firearms, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
At Varela’s first trial, the district court declared a mistrial. Following the
mistrial, the district court severed Count 3 from Counts 1 and 2. Varela then
proceeded to trial on the narcotics counts (Counts 1 and 2). That trial also ended
in a mistrial, however, because of prosecutorial disclosure issues. The United
States then moved to dismiss Counts 1 and 2, and the district court granted the
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motion. Varela then proceeded to trial on Count 3, the felon in possession of
firearms charge, and the jury found him guilty of the offense.
Prior to Varela’s sentencing, the probation office prepared a presentence
report (“PSR”). The final version of the PSR 1 first calculated Varela’s offense
level according to U.S.S.G. § 2K2.1(a) and (b). Under subsection (a)(6), Varela
had a base offense level of 14 for being a prohibited person at the time he
committed the offense. Then, the PSR applied three separate increases to
Varela’s offense level: a four-level increase for possessing eleven firearms
pursuant to subsection (b)(1), a two-level increase for possessing destructive
devices pursuant to subsection (b)(3), 2 and a four-level increase for using or
possessing firearms in connection with another felony offense pursuant to
subsection (b)(5). These calculations resulted in an offense level of 24.
Then, the PSR noted that a cross reference under U.S.S.G. § 2K2.1(c)(1)(A)
would apply if it resulted in a greater offense level than that calculated under
1
Varela’s PSR was revised after Varela objected to each enhancement
applied in his original PSR. The original PSR calculated Varela’s base offense
level using the enhancement found in U.S.S.G. § 2K2.1(b)(5), resulting in an
advisory guideline range of 63 to 78 months’ imprisonment.
The probation office used the 2005 edition of the Sentencing Guidelines
throughout to calculate Varela’s advisory guideline range, to which neither party
objected.
2
The government conceded to the district court that the evidence was not
sufficient to warrant the two-level increase pursuant to section 2K2.1(b)(3)(B).
See ROA, Vol. I, at 297. Because the PSR ultimately applied the cross reference
in subsection (c)(1)(A), the erroneous inclusion of the two-level enhancement
under subsection (b)(3)(B) does not affect the ultimate guidelines calculation.
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subsections 2K2.1(a) and (b). The PSR concluded subsection (c)(1)(A) should
apply, as well as its reference to U.S.S.G. § 2X1.1. Utilizing U.S.S.G. § 2X1.1,
the PSR calculated Varela’s offense level using the guideline for possession with
intent to distribute 150 to 500 grams of methamphetamine “ice,” 3 which generated
an offense level of 34. See U.S.S.G. § 2D1.1(c)(3)(“Drug Quantity Table”). The
PSR then used the greater of the offense levels, 34, which was calculated pursuant
to the cross reference under subsection (c)(1)(A).
Finally, the PSR applied a two-level obstruction adjustment pursuant to
U.S.S.G. § 3C1.2, resulting in a total offense level of 36. Combined with his
criminal history category of I, the resulting advisory guideline sentencing range
was 188 to 235 months’ imprisonment. But because the statutory maximum
sentence under 18 U.S.C. § 924(a)(2) is ten years, the advisory guideline sentence
was 120 months’ imprisonment.
At the sentencing hearing, Varela objected to the utilization of the cross
reference provision in subsection (c)(1)(A). The district court found:
Evidence presented to the Court indicated that Defendant
3
“Ice” is defined as “a mixture or substance containing d-
methamphetamine hydrochloride of at least 80% purity.” U.S.S.G.
§ 2D1.1(c) n.(C). At the sentencing hearing, Varela argued that the trial
testimony indicated that the methamphetamine was 75% pure, which would not
have reached the purity required of “ice.” Nonetheless, Varela agreed that the
PSR’s “calculations remain correct because, if you take the actual amount, that 34
level still applies.” ROA, Vol. III, at 449–50. It is not disputed on appeal that if
subsection (c)(1) applies, the base offense level would be 34 before any
enhancements.
4
used or possessed multiple firearms in connection with 166
net grams of methamphetamine, cash, and items commonly
used for drug distribution. Although the drug charge was
dismissed (for reasons unrelated to the sufficiency of the
evidence) after the mistrial, the evidence established, by at
least a preponderance, that Defendant possessed
methamphetamine with intent to distribute in close
proximity of several firearms.
ROA, Vol. I, at 317 (“Memorandum Opinion and Order”). Then, the district court
concluded that based on these findings, application of the cross reference under
section 2K2.1(c)(1)(A) was appropriate and lawful, and sentenced Varela to the
statutory maximum of 120 months’ imprisonment. Varela’s timely appeal
challenges the district court’s guidelines calculation.
II
In a sentencing appeal, we review the district court’s “legal conclusions de
novo and its factual findings for clear error.” United States v. Kristl, 437 F.3d
1050, 1055 (10th Cir. 2006). “A non-harmless error in calculating the Guidelines
range renders the sentence unreasonable and entitles the defendant to
resentencing.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th
Cir. 2008).
Varela argues that the district court erred by employing the cross reference
provision in U.S.S.G. § 2K2.1(c)(1)(A) in its determination of Varela’s offense
level under the Guidelines. At sentencing, the district court adopted the guideline
calculation contained in the PSR and applied the following cross reference:
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(c) Cross Reference
(1) If the defendant used or possessed any
firearm or ammunition in connection with the
commission or attempted commission of
another offense, or possessed or transferred a
firearm or ammunition with knowledge or
intent that it would be used or possessed in
connection with another offense, apply --
(A) §2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other
offense, if the resulting offense level is
greater than that determined above;
U.S.S.G. § 2K2.1(c)(1)(A) (emphasis added). Section 2X1.1(a) provides that the
base offense level would be “[t]he 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.”
Varela contends that the district court should not have used the cross
reference in subsection (c)(1)(A), but instead should have used subsection (b)(5)
to calculate his offense level. Subsection (b)(5) states:
If the defendant used or possessed any firearm or
ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be
used or possessed in connection with another felony
offense, increase by 4 levels. If the resulting offense level
is less than level 18, increase to level 18.
U.S.S.G. § 2K2.1(b)(5)(2005) (underlining emphasis added). According to
Varela, the Guidelines provide no guidance regarding when to use subsection
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(c)(1) or (b)(5), except for the use of the word “commission” in subsection (c)(1).
Specifically, Varela argues that based on this difference in wording, subsection
(c)(1) should be applied only if firearms are actually used in connection with the
commission of another offense, and (b)(5) should be applied if firearms are
merely present in connection with another offense.
The government responds that according to the Guidelines, “if a defendant
possesses a firearm in connection with the commission of another offense, the
[district] court must apply the offense level for the other offense if the resulting
offense level is higher than the offense level as calculated under the provision
governing the unlawful possession of firearms.” Appellee’s Br. at 6. We agree.
The determination regarding when to apply subsection (c)(1)(A) does not
hinge on a strained interpretation of the word “commission.” Rather, the plain
language of the Guidelines instructs that when a defendant uses or possesses
firearms in connection with the commission or attempted commission of another
offense, the district court should apply the cross reference in subsection (c)(1)(A)
only if it results in a higher offense level than would result under subsections (a)
and (b). See U.S.S.G. § 2K2.1(c)(1)(A) (stating that section 2X1.1 applies “if the
resulting offense level is greater than that determined above”). Thus, if a
defendant’s conduct falls under both subsections (b)(5) and (c)(1), a district court
should calculate the offense level twice: once using subsections (a) and (b), and
then using the cross reference in subsection (c)(1)(A). Then, the district court
7
should apply whichever resulting offense level is greater.
The resulting offense level using subsections (a) and (b) will depend on the
characteristics of the firearm possession, whereas the resulting offense level
under subsection (c)(1)(A) will depend on the characteristics of the other
substantive offense – in this case, the quantity and quality of methamphetamine.
Thus, depending on the facts of a given case, subsections (a) and (b) or subsection
(c)(1)(A) could provide the greater offense level and therefore, be used to
determine the advisory guidelines sentencing range.
To illustrate when each subsection would apply, we repeat the facts of this
case. The PSR first calculated the offense level without the cross reference in
subsection (c)(1)(A). Under section 2K2.1(a)(6)(A), Varela had a base offense
level of 14. Then, the PSR made the following increases to Varela’s offense
level: 4 levels under subsection (b)(1) for possessing eleven firearms; 2 levels
under subsection (b)(3) for possessing destructive devices; and then 4 levels
under subsection (b)(5) for using or possessing firearms in connection with
another felony offense. The resulting offense level was 24. Then, the PSR
calculated the offense level using the cross reference in subsection (c)(1)(A).
Under that cross reference, possession with intent to distribute 150 to 500 grams
of “ice” or actual methamphetamine resulted in an offense level of 34. Thus,
using only subsections (a) and (b), the resulting offense level was 24, and using
subsection (c)(1)(A), the resulting offense level was 34. Consequently, the PSR
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applied the greater offense level of 34, which was calculated using subsection
(c)(1)(A).
Now, take the same scenario but instead suppose that the defendant used or
possessed the same firearms in connection with a different substantive offense.
For example, suppose that the district court found that the defendant possessed
3.5 grams of actual methamphetamine with the intent to distribute, instead of 166
net grams. In that case, the calculation under subsections (a) and (b) would be
unchanged, resulting in an offense level of 24. But, using the cross reference in
subsection (c)(1)(A), the offense level for the substantive offense of possessing
3.5 grams of actual methamphetamine with the intent to distribute would result in
an offense level of 22. See U.S.S.G. § 2D1.1(c)(9). In that case, subsection
(c)(1)(A) would result in a lower offense level than that calculated using
subsections (a) and (b). Therefore, by its own terms, subsection (c)(1)(A) would
not be applied to calculate the defendant’s offense level.
Therefore, the Guidelines clearly explain when to apply subsection
(c)(1)(A) and when to apply subsections (a) and (b): the district court should
apply whichever subsection leads to the greater offense level. And, as the above-
described hypothetical scenario points out, the application of the subsection
which results in the greater offense level will not always require the application
of subsection (c)(1)(A).
Moreover, we reject Varela’s assertion that the language of subsection
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(c)(1) suggests that it should not be applied when firearms are “merely present” in
connection with another offense. To support this argument, Varela relies on the
Ninth Circuit’s decision in United States v. Myers, 112 F.3d 406 (9th Cir. 1997).
In Myers, the Ninth Circuit remanded the case to the district court for an
evidentiary hearing to determine whether subsection (b)(5) or subsection
(c)(1)(A) should apply. Id. at 411. The Myers court stated:
The difference in wording in Sections 2K2.1(b)(5) and
2K2.1(c)(1), coupled with guideline commentary and the
. . . cases from this circuit, suggest that only subsection
(b)(5) be applied when firearms are merely present in
connection with another offense, and that subsection
(c)(1)(A) also be applied when firearms are actually used
in connection with the commission of another offense.
Id.
As discussed above, this approach ignores the plain language of the
Guidelines, which directs the utilization of subsection (c)(1)(A) if it results in a
higher offense level. Additionally, while Myers may be the rule in the Ninth
Circuit, such an approach is inconsistent with our case law. In United States v.
Sullivan, 967 F.2d 370 (10th Cir. 1992), we upheld the application of section
2K2.1(c)(1) to a defendant who kept a firearm at his house, where he
manufactured drugs. The then-effective version of section 2K2.1(c)(1) stated:
“[i]f the defendant used the firearm in committing or attempting another offense,
apply . . . § 2X1.1 (Attempt or Conspiracy) if the resulting offense level is higher
than that determined above.” U.S.S.G. § 2K2.1(c)(1) (1988). The defendant in
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Sullivan argued that he did not use the firearm in committing or attempting
another offense because he “simply kept the weapon at his house,” and therefore,
subsection (c)(1) did not apply. 967 F.2d at 376. We rejected that argument and
recognized that access to a firearm supported the finding that the defendant “used
[a] weapon in or during the commission of a crime” under subsection (c)(1). Id.
Thus, subsection (c)(1) properly applies to a defendant who had access to a
firearm in connection with the commission or attempted commission of another
offense. See id.
In the present case, the district court found that “the evidence established,
by at least a preponderance, that Defendant possessed methamphetamine with
intent to distribute in close proximity of several firearms.” ROA, Vol. I, at 317.
Therefore, under Sullivan, Varela’s access to firearms during drug transactions
puts him squarely within the language of subsection (c)(1)(A). 4
III
Accordingly, we hold that the district court did not err in the calculation of
Varela’s sentence, and the judgment of the district court is AFFIRMED.
4
Moreover, this conclusion is consistent with our unpublished opinion in
United States v. Valdez, 248 F. App’x 47 (10th Cir. 2007). In Valdez, the
defendant argued that “the difference in wording between the two subsections . . .
suggests that (b)(5) may apply when firearms are merely present during the drug
trafficking, while (c)(1) may apply only when the firearms are actually used in
connection with the commission of the other offense.” Id. at 51. Relying on the
language of subsections (b)(5) and (c)(1)(A) and our precedent of Sullivan, we
rejected that argument and the approach of the Ninth Circuit in Myers. See id. at
51–52.
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