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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14537
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20406-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES QUINTANILLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 19, 2016)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Andres Quintanilla, a former sergeant with the Miami Springs Police
Department, appeals his sentence of 108 months of imprisonment after pleading
guilty, under a written plea agreement, to one count of Hobbs Act extortion under
color of official right, 18 U.S.C. § 1951(a). Quintanilla raises two arguments on
appeal: (1) the sentence appeal waiver in his plea agreement is unenforceable
because the government breached the plea agreement by breaking a promise made
during the plea colloquy; and (2) the district court erred in enhancing Quintanilla’s
offense level by two levels, per U.S.S.G. § 2B1.1, and refusing to reduce his
offense level by two levels, per U.S.S.G. §§ 2D1.1(b)(17) and 5C1.2(a)(2), 1 after
finding that Quintanilla possessed a firearm in connection with the offense. After
careful review, we decline to enforce the appeal waiver and affirm Quintanilla’s
sentence.
I.
We review the validity of a sentence appeal waiver provision de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Generally, we
will enforce an appeal waiver that was made knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). To establish that the
waiver was made knowingly and voluntarily, the government must show either that
(1) the district court specifically questioned the defendant about the waiver during
1
All guidelines references are to the 2014 version of the Guidelines Manual.
2
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the plea colloquy, or (2) “it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver.” Id. at 1351.
Here, we decline to enforce the appeal waiver. Putting aside the question of
whether the government breached the plea agreement, the government has not
shown that the waiver was made knowingly and voluntarily. 2 See id. While the
magistrate judge who conducted Quintanilla’s plea colloquy read out loud the
terms of the waiver during the colloquy, she did not specifically question
Quintanilla about the waiver or confirm that he understood what those terms
meant. Moreover, Quintanilla’s response to the magistrate judge’s explanation of
the waiver, “Okay,” does not clearly show that he understood the magistrate
judge’s explanation, and the government has not identified parts of the record that
make “manifestly clear” his understanding of the full significance of the waiver.
Therefore, the government has not shown either of the two routes under Bushert
for establishing the validity of the waiver. See id.
And because the government has briefed Quintanilla’s guidelines challenges,
we neither burden nor prejudice the government by enforcing the waiver. Cf.
United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006) (“[R]equiring the
2
The government notes that Quintanilla challenged the appeal waiver on only the ground
that the plea agreement was breached, and it limits its arguments to the breach issue. But it is the
government’s burden to show that the appeal waiver was made knowingly and voluntarily, and it
has not done so here, no matter what Quintanilla argued. See Bushert, 997 F.2d at 1351.
Because the only remedy Quintanilla requested for the government’s alleged breach was
invalidation of the waiver and we decline to enforce the waiver here, we need not and do not
decide whether the government breached the plea agreement.
3
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government to file a brief where there has been a valid appeal waiver undermines
the interests of both the government and defendants generally.”). We therefore do
not enforce the sentence appeal waiver in Quintanilla’s plea agreement.
II.
Turning to the merits, Quintanilla argues that no evidence supports the
district court’s finding that he possessed a firearm in connection with the offense.
As a result, he asserts, the court erred in applying the two-level enhancement for
possession of a firearm, per U.S.S.G. § 2D1.1(b)(1), and in refusing to apply a two-
level reduction for meeting the safety-valve criteria, per U.S.S.G. § 2D1.1(b)(17)
(providing for a two-level reduction if the defendant meets the five requirements
set forth in U.S.S.G. § 5C1.2(a)). One of the five requirements under § 5C1.2(a) is
that the defendant not have “possess[ed] a firearm . . . in connection with the
offense.” U.S.S.G. § 5C1.2(a)(2).
A.
Quintanilla was a sergeant with the Miami Springs Police Department. Near
the end of 2014, he began having conversations with a confidential source working
with the Federal Bureau of Investigation. The source told Quintanilla that he was a
drug trafficker who imported cocaine shipments through the Miami International
Airport. Quintanilla agreed to help.
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In November 2014, the source told Quintanilla about an upcoming shipment
of ten kilograms of cocaine that the source planned to sell in the City of Miami
Springs. Quintanilla helped choose a date and location for the planned drug deal.
On December 5, 2014, Quintanilla, while on duty, met the source at the agreed-
upon location, a grocery store parking lot, where the source showed Quintanilla
fake cocaine and indicated that it was being sold for $250,000. Quintanilla then
left the parking lot for a brief period while the sale was completed. Later,
Quintanilla told the source that he left the parking lot to distract a police detective
he had seen in the area. After the sale, Quintanilla, in his patrol car, followed the
source’s car to a shipping facility, where the source said the drug proceeds would
be dropped off in order to be laundered elsewhere. Quintanilla was paid $2,500 for
his assistance.
Before sentencing, Quintanilla’s revised presentence investigation report
(“PSR”) calculated his offense level using the drug-trafficking guideline, § 2D1.1,
because Quintanilla committed his extortion offense for the purpose of facilitating
a drug offense. U.S.S.G. § 2C1.1(c)(1). Under the drug-trafficking guideline, a
two-level enhancement was added because “a dangerous weapon (a firearm) was
possessed.” U.S.S.G. § 2D1.1(b)(1). In his objections to the PSR, Quintanilla did
not dispute that he possessed a firearm, but he asked for a two-level reduction
under §§ 2D1.1(b)(17) and § 5C1.2(a)(2) because, he contended, his possession of
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a firearm was not in connection with the offense. In a second addendum to the
PSR, the probation officer disagreed with Quintanilla that a two-level reduction
was applicable “because the defendant, while armed, provided protection for and
escorted drug proceeds.”
Quintanilla pressed his § 5C1.2(a)(2) argument at sentencing, contending
that his service firearm, though possessed, had no connection to the offense.
Sentencing Hr’g Tr. at 4 (Doc. 37) (stating that “the firearm was not used in
furtherance of any of the crime and that it does not preclude him from the benefits
of § 5C1.2(a)(2)”); id. at 5 (“The firearm happened to be present on him, but there
is no evidence that it was used in furtherance of the crime.”); id. (“There was never
any circumstance in which that weapon was ever involved in any way or took part
in the case itself. He was in a vehicle. There was never any circumstance where it
was [employed] or used in furtherance of the crime. Again, my client pled to a
bribery case.”). Over Quintanilla’s objections, the district court agreed with the
probation officer and found that Quintanilla possessed the firearm in connection
with the drug offense. The court applied the § 2D1.1(b)(1) enhancement but did
not apply the § 2D1.1(b)(17) reduction. The district court sentenced Quintanilla to
108 months of imprisonment, at the low end of his guideline range.
B.
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We review a district court’s factual findings, including a finding that a
defendant possessed a firearm, for clear error. United States v. Carillo-Ayala,
713 F.3d 82, 87 (11th Cir. 2013); United States v. Stallings, 463 F.3d 1218, 1220
(11th Cir. 2006). The district court’s legal interpretations of the Sentencing
Guidelines are reviewed de novo. Carillo-Ayala, 713 F.3d at 87. While we review
de novo the legal standard that the district court applies, we generally review for
clear error the court’s application of the standard to a detailed fact pattern. Id. at
87–88. We will not find clear error unless we are left with a definite and firm
conviction that a mistake has been made. United States v. White, 335 F.3d 1314,
1319 (11th Cir. 2003). 3
Under § 2D1.1(b)(1), a defendant’s offense level is increased by two levels
“[i]f a dangerous weapon (including a firearm) was possessed.” To prove that the
enhancement applies, the government bears the burden of showing, by a
preponderance of the evidence, either “that the firearm was present at the site of
the charged conduct or . . . that the defendant possessed a firearm during conduct
associated with the offense of conviction.” Stallings, 463 F.3d at 1220; United
States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999). If the government meets
its burden, “the evidentiary burden shifts to the defendant, who must demonstrate
3
Quintanilla did not object to the district court’s application of the § 2D1.1(b)(1) firearm-
possession enhancement on the grounds he raises on appeal, so we would normally review for
plain error only. In any case, he preserved his interrelated challenge under § 5C1.2(a)(2), and
our inquiry into both guidelines is substantially the same. Accordingly, we do not apply plain-
error review.
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that a connection between the weapon and the offense was ‘clearly improbable.’”
Stallings, 463 F.3d at 1220 (quoting United States v. Audain, 254 F.3d 1286, 1289
(11th Cir. 2001)).
Section § 2D1.1(b)(17) likewise implicates a defendant’s possession of a
firearm, providing for a two-level decrease in the offense level if, among other
criteria listed in § 5C1.2(a), the defendant “did not . . . possess a firearm or other
dangerous weapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2)
(emphasis added). We have held that possession “in connection with” means
something more than possession, so a defendant may possess a firearm, for
purposes of § 2D1.1(b)(1), without possessing the firearm “in connection with the
offense,” for purposes of § 5C1.2(a)(2). Carillo-Ayala, 713 F.3d at 89–91.
Where a defendant who possessed a firearm seeks the protection of the
safety valve, § 5C1.2(a) (in this case, by way of § 2D1.1(b)(17)), “the district court
must determine whether the facts of the case show that a connection between the
firearm and the offense, though possible, is not probable.” Id. at 91. The
defendant may negate proof of a connection by a preponderance of the evidence, or
the government may preclude relief by proving the fact of a connection by a
preponderance of the evidence. Id. at 96.
A sufficient “connection” between the firearm and the offense may be
shown if the firearm is in proximity to drugs or if the firearm facilitates or has the
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potential to facilitate the drug offense. Id. at 91–96. Facilitation, in turn, includes
“emboldening an actor who had the ability to display or discharge the weapon, . . .
serving as an integral part of a drug transaction as in a barter situation, . . .
instilling confidence in others who relied on the defendant, or serving as a ‘badge
of office’ to help the defendant avoid detection.” Id. (citations omitted). For
example, we have concluded that an INS agent’s possession of a firearm while
escorting a drug courier through an airport facilitated the offense because the
firearm’s presence increased the chances for successful drug trafficking, both by
instilling confidence in the drug courier and “diminish[ing] the likelihood that
someone [would] look at him suspiciously.” Id. at 94–95 (discussing the facts of
Audain, 254 F.3d at 1289).
We analyze the provisions of § 2D1.1(b)(1) and § 5C1.2(a)(2) by reference
to the defendant’s relevant conduct. See Stallings, 463 F.3d at 1220; U.S.S.G.
§ 5C1.2 cmt. n.3 (the term “offense” for § 5C1.2(a)(2) means “the offense of
conviction and all relevant conduct”). So although Quintanilla’s offense of
conviction was Hobbs Act extortion, we evaluate the application of the two
guideline provisions based on his relevant conduct, which includes his facilitation
of what he believed to be a transaction involving ten kilograms of cocaine.
Here, the district court did not err in applying § 2D1.1(b)(1) or in refusing to
apply § 2D1.1(b)(17). First, the court did not clearly err in finding that Quintanilla
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possessed a firearm during conduct relevant to the offense. See Stallings, 463 F.3d
at 1220. Quintanilla was an on-duty police officer during relevant conduct. He
also did not dispute factual statements in the second addendum to the PSR stating
that he was “armed” during conduct related to the December 5, 2014, cocaine
transaction, so he is deemed to have admitted those facts for purposes of
sentencing. See United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (“A
sentencing court’s findings of fact may be based on undisputed statements in the
[PSR].”); id. at 833–34 (“Bennett failed to object to the facts of his prior
convictions as contained in his [PSR] and addendum to the [PSR] despite several
opportunities to do so; thus, he is deemed to have admitted those facts.”). Indeed,
far from objecting to the fact of his possession of a firearm, Quintanilla, through
counsel, admitted multiple times during the sentencing hearing, recounted above,
that he possessed a firearm during conduct relevant to the offense. Therefore, the
facts adequately establish that Quintanilla possessed a firearm during the offense.
Second, the district court did not clearly err in finding that Quintanilla’s
possession of the firearm was in connection with the offense, because the firearm
facilitated or had the potential to facilitate the offense. See Carillo-Ayala, 713
F.3d at 87–88, 95–96. The record shows that Quintanilla admitted that he had
agreed to provide cover and protection for a drug trafficker transporting ten
kilograms of cocaine. In particular, during the plea colloquy, Quintanilla agreed
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with the prosecutor’s statement that he had “agreed he would watch over the drug
transaction in the City of Miami Springs and protect the confidential information
source from something going wrong.” Plea Hr’g Tr. at 35 (Doc. 29). Acting on
that agreement, Quintanilla, while armed, met with the source on the planned date
of the drug sale and then followed the source as the source drove with the drug
proceeds to another location.
Based on these facts, Quintanilla’s firearm facilitated or had the potential to
facilitate the offense because it was available for use as a weapon in order to
protect the confidential source “from something going wrong,” most notably while
the source drove, purportedly, with a substantial amount of drug proceeds. See
Carillo-Ayala, 713 F.3d at 95–96. For similar reasons, the firearm had the
potential to facilitate the offense by instilling confidence in the person who hired
Quintanilla for protection. See id.
In sum, Quintanilla’s possession of a firearm while providing cover and
protection for a drug transaction was sufficient to show both possession of a
firearm, § 2D1.1(b)(1), and possession of a firearm in connection with the offense,
§ 5C1.2(a)(2). Accordingly, the district court did not err in calculating
Quintanilla’s guideline range. We therefore affirm Quintanilla’s sentence.
AFFIRMED.
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