FILED
NOT FOR PUBLICATION JUN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50467
Plaintiff - Appellee, D.C. No. 2:09-cr-01131-JHN
v.
MEMORANDUM *
JAIME RIOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted May 7, 2013
Pasadena, California
Before: PAEZ and IKUTA, Circuit Judges, and EZRA, District Judge.**
Defendant-Appellant Jaime Rios (“Rios”) pled guilty to conspiracy to
distribute cocaine and now appeals his sentence. He argues that the appeal waiver
in his plea agreement is unenforceable. He also contends that the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
erred in applying a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1)
because there was insufficient evidence to establish that he possessed a firearm
during the commission of the charged conspiracy. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. This appeal is not barred by the appeal waiver set forth in Rios’s plea
agreement. At his sentencing, the district court told Rios that he had the right to
appeal his sentence, and the government did not object. The appeal waiver
contained in Rios’s plea agreement is therefore unenforceable. United States v.
Buchanan, 59 F.3d 914, 917 (9th Cir. 1995) (holding that a trial judge’s oral
pronouncement that a defendant may appeal his sentence controls, even if
erroneous).
2. As for Rios’s second issue on appeal, Section 2D1.1(b)(1) of the United
States Sentencing Guidelines provides for a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed” during an offense
involving drugs. U.S.S.G. § 2D1.1(b)(1) (2010); see also United States v. Aquino,
242 F.3d 859, 863 (9th Cir. 2001). We review for clear error the district court’s
factual determination that a defendant possessed a firearm during the commission
of an offense. United States v. Stewart, 926 F.2d 899, 900 (9th Cir. 1991).
When Rios was arrested, the government searched his person, residence,
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garage, and vehicles, and found the following: more than $60,000 in cash; one
loaded .38 caliber handgun; two loaded 9 mm semi-automatic handguns; six
cellular telephones; one pound of methamphetamine; and seven ounces of cocaine.
The district court concluded that the two-level enhancement was called for under
the guidelines because it appeared that Rios “possessed [a] firearm during the
period of time that he was involved in the drug trade,” as evidenced “not only by
the presence of narcotics at the time that he was arrested, but also by the large
amount of cash along with the three loaded firearms.”
Rios argues that the district court erred because there was no evidence that
he possessed the firearms during the commission of any overt act associated with
the charged conspiracy, or that he possessed them during the time period of the
charged conspiracy. However, for purposes of the dangerous weapon
enhancement, we have defined “possession” broadly. United States v. Pitts, 6 F.3d
1366, 1372 (9th Cir. 1993). The firearm need not be present during any particular
transaction; “the key is whether the gun [is] possessed during the course of
criminal conduct. . . .” Stewart, 926 F.2d at 901. Accordingly, the enhancement is
properly applied where a district court finds that the defendant possessed a firearm
while involved in the same course of criminal conduct as the offense of conviction;
in this case, the drug trade. See United States v. Willard, 919 F.2d 606, 609 (9th
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Cir. 1990) (“The district court properly found that appellant possessed firearms
during the period of time in which he was involved in the drug trade.”). In light of
the amount of drugs and cash and the number of cellular telephones and firearms in
Rios’s possession at the time of his arrest, the district court did not err when it
found that Rios possessed a firearm while involved in the drug trade.
AFFIRMED.
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