[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 30, 2008
No. 07-15556 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00151-CR-T-30-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE FLORES-MOYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 30, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Luis Flores-Moya appeals his low-end, Guideline range, aggregate sentence
of 87 months’ incarceration, followed by 5 years supervised release, that he
received after being convicted of (1) conspiracy to possess with intent to distribute
at least 5 kilograms of cocaine while onboard a vessel subject to the jurisdiction of
the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. §
70506(a) and (b), and (2) possession with intent to distribute at least 5 kilograms of
cocaine while onboard a vessel subject to the jurisdiction of the United States, in
violation of 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii), and
46 U.S.C. § 70503(a)(1). On appeal, Flores-Moya argues that the district court
improperly applied the Guidelines by enhancing his offense level by two levels
pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon because
he had no knowledge of or connection to the weapons.
I.
We review a district court’s interpretation of the Guidelines de novo, but
accept the district court’s factual findings unless they are clearly erroneous. United
States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005).
A district court must correctly apply the Guidelines to calculate the
Guideline range. Crawford, 407 F.3d at 1179. In applying the Guidelines, the
court may rely upon the factual statements concerning relevant conduct in the PSI
unless the defendant objects to those statements. United States v. Shelton,
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400 F.3d 1325, 1330 (11th Cir. 2005). While explicit findings of fact and
determinations are preferred, a court’s failure to make such findings and
determinations does not require remand, if the record clearly supports the court’s
implicit determination. United States v. Villarino, 930 F.2d 1527, 1528-29
(11th Cir. 1991).
Under the Guidelines, if a defendant possesses a dangerous weapon in
relation to a drug offense, his offense level is increased by 2 levels. U.S.S.G.
§ 2D1.1(b)(1). The commentary instructs that the weapon enhancement should be
applied if a weapon was present, unless it was clearly improbable that the weapon
was connected with the offense. Id. cmt. n.3. The commentary states that an
unloaded hunting rifle in a residential closet would be an example of clear
improbability. Id. The government bears the burden of establishing the existence
of the weapon and its proximity to the site of the offense. United States v. Hall,
46 F.3d 62, 63 (11th Cir. 1995) (per curiam). Once the government meets its
burden, the burden shifts to the defendant to “show that a connection between the
firearm and the offense is clearly improbable.” Id.
Even if a co-conspirator was the actual possessor of the weapon, the weapon
enhancement under § 2D1.1(b)(1) may apply. United States v. Stanley, 24 F.3d
1314, 1322-23 (11th Cir. 1994). If the enhancement is based on a co-conspirator’s
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possession, the government must establish that the conspirator was charged and
possessed the weapon in furtherance of the conspiracy, and that the defendant
whose offense level is being enhanced was a member of the conspiracy at the time
of the possession. Id. Furthermore, we held in United States v. Pessefall, 27 F.3d
511, 515 (11th Cir. 1994), that it was reasonably foreseeable that a co-conspirator
would use a weapon to protect cocaine during unloading.
Having reviewed the record and the briefs of the parties, we discern no error.
Because Flores-Moya boarded the vessel in order to participate in a drug
trafficking conspiracy, and weapons intended for protection were found onboard,
the district court properly increased his offense level by two levels under
U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. Accordingly, we
affirm the district court’s sentence.
AFFIRMED
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