Case: 12-10482 Date Filed: 12/11/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10482
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00059-JES-SPC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JUAN CARLOS VEGA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 11, 2012)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Juan Vega appeals his 51-month sentence, imposed after he pled guilty to
six counts of distribution of a quantity of cocaine and one count of possession
with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). On appeal, Vega argues the district court (1) misapplied the
U.S.S.G. § 2D1.1(b)(1) firearm enhancement, (2) misapplied the U.S.S.G.
§ 2D1.1(b)(12) premises enhancement, and (3) imposed a substantively
unreasonable sentence.1 After review, we affirm Vega’s sentence and remand for
the limited purpose of correcting a clerical error in the written judgment.
I.
Vega contends the district court erred in imposing the firearm enhancement
because there is no evidence the firearm had any connection to the drug activity.
We review for clear error the district court’s findings of fact under U.S.S.G.
§ 2D1.1(b)(1), and we review de novo the application of the Guidelines to those
facts. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006).
Section 2D1.1(b)(1) provides that the offense level for a drug offense is
increased by two levels “[i]f a dangerous weapon (including a firearm) was
1
Vega also contends the district court incorrectly assessed criminal-history points for
two of Vega’s prior convictions under Fla. Stat. Ann. § 893.13, because that statute is facially
unconstitutional. The cases upon which Vega relies to establish that § 893.13 is facially
unconstitutional have since been reversed. Regardless, the district court is ordinarily not
permitted to assess the constitutionality of a previous conviction during a sentencing hearing.
See United States v. Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000).
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possessed.” U.S.S.G. § 2D1.1(b)(1). The Guidelines instruct the district court to
apply the enhancement “if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” Id., cmt. n.3. The government
has the initial burden to show by a preponderance of the evidence, inter alia, that
the firearm was present at the site of the charged conduct. United States v.
Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). If the government meets its
burden, the burden shifts to the defendant to prove that a connection between the
weapon and the offense is “clearly improbable.” Id. “[T]he mere fact that a drug
offender possesses a firearm does not necessarily give rise to the firearms
enhancement. The government must show some nexus beyond mere possession
between the firearms and the drug crime.” Id. at 1221.
The district court did not err by applying the firearm enhancement pursuant
to § 2D1.1(b)(1). The firearm’s location in a safe with drug paraphernalia and in a
room with more than 40 grams of cocaine establishes a “nexus beyond mere
possession.” See Stallings, 463 F.3d at 1221. Moreover, Vega did not prove that
a connection between the weapon and the offense was “clearly improbable,” as the
firearm was present on the date Vega was arrested, was in proximity to several
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drug-related objects and cocaine, and was located in the house where previous
drug transactions had occurred.2
II.
Vega argues the district court erred in applying the two-level premises
enhancement pursuant to § 2D1.1(b)(12). Because Vega did not raise this issue
before the district court, we review for plain error. See United States v. Bacon,
598 F.3d 772, 777 (11th Cir. 2010). To establish plain error, the defendant must
show (1) an error, (2) that is plain, and (3) that affects substantial rights. Id. “An
error is plain if it is obvious and clear under current law.” Id. (quotations
omitted).
Section 2D1.1(b)(12) of the Guidelines adds a two-level enhancement“[i]f
the defendant maintained a premises for the purpose of manufacturing or
distributing a controlled substance,” including “storage of a controlled substance
for the purpose of distribution.” U.S.S.G. § 2D1.1(b)(12) & cmt. n.28. We have
not yet interpreted § 2D1.1(b)(12), and there is no Supreme Court precedent on the
issue.
2
Vega’s argument that the burden should not have shifted to him to show the connection
was “clearly improbable” fails. As Vega acknowledges, we have long provided for this shifting
burden. See Stallings, 463 F.3d at 1220.
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The district court did not plainly err by applying the two-level enhancement
pursuant to § 2D1.1(b)(12) because Vega sold cocaine out of his home on multiple
occasions. Even assuming arguendo the district court’s application of the
enhancement was error, any error was not plain, as no binding precedent
established that the court’s application of the enhancement on such facts was
erroneous. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)
(“[W]here neither the Supreme Court nor this Court has ever resolved an issue . . .
there can be no plain error in regard to that issue.”).
III.
Vega contends his sentence is substantively unreasonable based on his age
and the fact that he has never spent a significant amount of time incarcerated. He
notes that law enforcement initiated each of the drug purchases, in increasing
amounts, which increased the drug quantity and significantly affected his
Guidelines range.
We review the reasonableness of sentences under a deferential abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007). Once we
determine a sentence is procedurally sound, we examine whether or not the
sentence was substantively reasonable in light of the totality of the circumstances.
Id. The party who challenges the sentence bears the burden to show it is
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unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Vega fails to demonstrate his sentence is substantively unreasonable in light
of the record and the § 3553(a) factors. The district court properly considered the
§ 3553(a) factors and discussed Vega’s arguments, and sentenced Vega to a term
at the low end of the Guidelines range. See United States v. Hunt, 526 F.3d 739,
746 (11th Cir. 2008) (noting we ordinarily expect sentences within the Guidelines
range to be reasonable). The district court declined to vary downward because,
despite having several convictions which did not result in jail time, Vega
continued to “sell[] all the cocaine the agents could buy.” Vega’s sentence was
substantively reasonable.
IV.
The Government concedes this case should be remanded to allow the
district court to correct a clerical error in the judgment regarding the description of
Vega’s conviction as to Count 7. The indictment charged Vega with six counts of
distribution and one count of possession with intent to distribute. Vega pled guilty
to those charges, but the written judgment was recorded for seven counts of
distribution. We remand for the limited purpose of correcting the clerical error in
the written judgment. See United States v. James, 642 F.3d 1333, 1343 (11th Cir.
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2011) (“We may remand with instructions to correct a clerical error in the
judgment.”).
AFFIRMED IN PART, REMANDED IN PART.
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