NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 11 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10316
Plaintiff - Appellee, D.C. No. 2:09-cr-358-WBS-2
v.
MEMORANDUM*
RAMIRO SUAREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Submitted July 7, 2016**
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Defendant-Appellant Ramiro Suarez pleaded guilty to the following drug-
related offenses pursuant to 21 U.S.C. §§ 841 and 846: conspiracy, manufacturing
at least 1,000 marijuana plants, distribution of methamphetamine, and possession
with intent to distribute methamphetamine. Suarez also pleaded guilty to being an
alien in possession of a firearm pursuant to 18 U.S.C. 922(g)(5)(A). The district
court sentenced Suarez to a prison term of 216 months. Suarez appeals his
sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and
we affirm in part, reverse in part, and remand the case for resentencing.
First, Suarez argues that the district court erred in applying a 2-level
enhancement pursuant to United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 3B1.1(c) based on his leadership role in the conspiracy. Section
3B1.1(c) states that a court should increase an offense level by two levels based on
a defendant’s role in an offense if “the defendant was an organizer, leader,
manager, or supervisor of any criminal activity other than described in (a) or (b).”
See U.S.S.G. § 3B1.1(c). Application Note 2 to section 3B1.1 states that “an
upward departure may be warranted, however, in the case of a defendant who did
not organize, lead, manage, or supervise another participant, but who nevertheless
exercised management responsibility over the property, assets, or activities of a
criminal organization.” U.S.S.G. § 3B1.1, cmt. n.4. We review the district court’s
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interpretation of the Sentencing Guidelines de novo. United States v. Smith, 719
F.3d 1120, 1123 (9th Cir. 2013).
The district court incorrectly interpreted the sentencing guidelines when it
accepted the government’s argument that it could apply an enhancement pursuant
to section 3B1.1(c) solely based on Suarez’s management of property or assets of
the criminal organization. Such management is insufficient to warrant application
of the enhancement, as a court must find a defendant exercised some level of
control over another participant prior to applying the enhancement. In this circuit,
“some degree of control or organizational authority over others is required in order
for section 3B1.1 to apply.” United States v. Bonilla-Guizar, 729 F.3d 1179, 1186-
87 (9th Cir. 2013) (emphasis in original) (quoting United States v. Mares–Molina,
913 F.2d 770, 773 (9th Cir. 1990)). In other words, “[c]ontrol over the activities or
assets of a criminal organization may [] support an upward departure from the
guidelines, but may not contribute to the calculation of the guidelines sentence.”
United States v. Whitney, 673 F.3d 965, 975 n.6 (9th Cir. 2012). Because the
district court misinterpreted the guidelines, affecting its calculation of the
applicable offense level and the resulting guidelines range, we reverse and remand
the case for resentencing.
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Second, Suarez argues that the district court erred in applying a 2-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based on the presence of firearms
in a locked compartment under Suarez’s bed at his residence. Pursuant to section
2D1.1(b)(1), courts are instructed to apply a 2-level enhancement to a defendant’s
offense level where “a dangerous weapon (including a firearm) was possessed.”
See United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). This Circuit
interprets “possession” broadly. United States v. Pitts, 6 F.3d 1366, 1372 (9th Cir.
1993); see also United States v. Boykin, 785 F.3d 1352, 1364 (9th Cir. 2015), cert.
denied, 136 S. Ct. 272 (2015) (stating that to show constructive possession, the
government need only show “a sufficient connection between the defendant and
the contraband to support the inference that the defendant exercised dominion and
control over the [contraband]”) (quoting United States v. Kelso, 942 F.2d 680, 682
(9th Cir. 1991)). However, Application Note 3 to section 2D1.1 provides for an
exception, stating that a court should not apply the adjustment where “it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. §
2D1.1(b)(1), cmt. n.3. The defendant bears the burden of showing that it is
“clearly improbable” that he or she possessed a dangerous weapon in connection
with an offense. Ferryman, 444 F.3d at 1186. We review for clear error a district
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court’s factual finding that a defendant possessed a dangerous weapon in
connection with a drug offense. Kelso, 942 F.2d at 681; Smith, 719 F.3d at 1123.
Here, the district court did not clearly err in finding that (1) Suarez
possessed the guns during the drug offenses, and (2) Suarez did not demonstrate
that it was clearly improbable that the guns were connected to the offenses. The
district court’s findings are supported by the following facts. Police found multiple
guns under Suarez’s bed at his own home, where only Suarez, his wife and
children lived. Further, multiple drug transactions had occurred at Suarez’s home,
and police found a large quantity of drugs and some evidence of drug trafficking in
and around the home. See e.g., United States v. Kyllo, 37 F.3d 526, 531 (9th Cir.
1994) (upholding enhancement where two guns were present at the same residence
as a marijuana grow operation); United States v. Lopez-Sandoval, 146 F.3d 712,
715 (9th Cir. 1998) (stating “[w]e have upheld an enhancement for weapons
possession when the record showed that on the day that a drug transaction took
place, the defendant was living in a place where a weapon was found four months
later,” even though the drug transaction did not occur at his residence). Further,
the fact that the guns were in a locked compartment in Suarez’s residence at the
time the police discovered them does not render it clearly improbable that the
weapons were connected to the drug offenses. This is particularly true in light of
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the fact that the presentence report that the district judge adopted stated that Suarez
had conducted other drug transactions at his home during the course of his nearly
nine-month span of criminal conduct. See Pitts, 6 F.3d at 1373 (holding that a
district court may consider the entire course of a defendant’s criminal conduct, not
just the offense of conviction, in determining whether a firearm is connected with a
drug offense).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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