                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4771


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOBANI GONZALEZ-TREJO, a/k/a Dog,

                Defendant - Appellant.



                             No. 11-4772


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDILBERTO ANGELES-GUZMAN, a/k/a Primo,

                Defendant – Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:09-cr-00264-BO-1; 5:09-cr-00264-BO-2)


Submitted:   May 3, 2012                        Decided:   June 6, 2012


Before AGEE and    DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Gregory B. Smith, LAW OFFICES OF GREGORY B. SMITH, Washington,
D.C., for Appellant Jobani Gonzalez-Trejo; Jorgelina E. Araneda,
ARANEDA LAW FIRM, PC, Raleigh, North Carolina, for Appellant
Edilberto Angeles-Guzman.    Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Jobani    Gonzalez-Trejo           and    Edilberto          Angeles-Guzman

(collectively        Appellants)       pleaded        guilty    to        conspiracy     to

distribute     and    to     possess       with    intent      to    distribute        five

kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 846,

and related substantive offenses.                  The Appellants each received

a   sentence    of    151    months’       imprisonment.             On    appeal,     they

challenge their respective sentences.                 We affirm.

             Appellants first argue that the district court erred

in calculating the base drug amount attributable to them under

United    States     Sentencing      Commission        Guidelines         Manual     (USSG)

§ 2D1.1    (2010).          More   specifically,         they       contend    that     the

district     court’s       finding     concerning        the    base        drug   amount

required it to start at a base offense level of 32 instead of

34.

             A Presentence Investigation Report (PSR) was prepared

for each of the Appellants.                 In the reports, both Appellants

were attributed in excess of 156 kilograms of cocaine for their

respective roles in the conspiracy, which resulted in a base

offense level of 38, see USSG § 2D1.1(c)(1) (requiring more than

150 kilograms of cocaine).             Much of this drug amount was based

on information provided by a confidential informant (CI).                               The

Appellants     objected       to     the    drug      calculations,          urging    the

district court to find that they were responsible for between

                                            3
five and fifteen kilograms of cocaine, which corresponded to a

base offense level of 32, see id. § 2D1.1(c)(4) (requiring at

least five but less than fifteen kilograms of cocaine).                                          The

district     court        sustained       the    objection       in    part       based    on    its

finding      that     the    CI     was     not       a     “credible    witness          for    the

government.”         (J.A. 207).           Although its drug amount finding was

no   model    of     clarity,      the     district          court    made    a    conservative

estimate      of      the     amount        of        cocaine        attributable         to     the

Appellants,        finding     them       responsible         for     between      fifteen       and

fifty kilograms of cocaine, which resulted in a base offense

level of 34, see USSG § 2D1.1(c)(3) (requiring at least fifteen

but less than fifty kilograms of cocaine).

              We    review     the       district         court’s      calculation         of    the

quantity of drugs attributable to a defendant for sentencing

purposes for clear error.                 United States v. Slade, 631 F.3d 185,

188 (4th Cir. 2011); United States v. Randall, 171 F.3d 195, 210

(4th Cir. 1999).             Under USSG § 1B1.3(a)(1)(B), a defendant is

responsible        not     only     for    his        own    acts,     but    also    for       “all

reasonably          foreseeable           acts”        of      his      coconspirators            in

furtherance          of      the         joint        criminal         activity.                USSG

§ 1B1.3(a)(1)(B).                  The     defendant           bears      the       burden       of

establishing that the information relied upon by the district

court is erroneous.           Randall, 171 F.3d at 210–11.



                                                  4
            On    appeal,       the    Appellants      argue          that   the   district

court specifically found that between five and fifty kilograms

of cocaine were attributable to them for sentencing purposes.

According to the Appellants, because such a finding straddles

base offense levels 32, see USSG § 2D1.1(c)(4) (requiring at

least five but less than fifteen kilograms of cocaine), and 34,

see id. § 2D1.1(c)(3) (requiring at least fifteen but less than

fifty kilograms of cocaine), the district court was required to

assign each of them a base offense level of 32 instead of 34.

The problem with the Appellants’ argument is that it rests on a

faulty premise.         Although the district court stated that it was

“inclined   to     believe      that    the       preponderance         of   the   evidence

establishes       between    five      and    fifty     keys,”         (J.A.     153),     the

district court went on to clarify and find that a preponderance

of the evidence supported an attributable drug amount between

fifteen and fifty kilograms of cocaine which corresponded to a

base offense level of 34.               Considering the evidence before the

district court, such finding is not clearly erroneous.

            The    Appellants         next    argue    that       the    district        court

improperly applied a two-level enhancement for possession of a

firearm.        Under    USSG    §     2D1.1(b)(1),         a   district       court      must

increase    a     defendant’s         offense       level       two     levels     “[i]f     a

dangerous weapon (including a firearm) was possessed.”                                   USSG

§ 2D1.1(b)(1).       In order to prove that a weapon was present, the

                                              5
government “need show only that the weapon was possessed during

the   relevant        illegal      drug     activity.”            United        States    v.

McAllister, 272 F.3d 228, 233–34 (4th Cir. 2001).

            Here,     the     PSRs   recommended          application      of    the     two-

level enhancement under USSG § 2D1.1(b)(1) because a “firearm

was seized from a residence used by [the Appellants] to store

and   distribute         cocaine.”          (J.A.    197-98).            Angeles-Guzman

objected to the recommendation, but Gonzalez-Trejo did not.                               The

district         court        overruled         Angeles-Guzman’s                objection.

Consequently, the district court applied the enhancement to the

Appellants.

            With regard to Angeles-Guzman’s challenge, our review

is for clear error.            McAllister, 272 F.3d at 234.                     Under this

standard    of    review,     we     will   only     reverse      if    left     with    the

“definite     and      firm     conviction       that       a     mistake       has      been

committed.”       United States v. Harvey, 532 F.3d 326, 336–37 (4th

Cir. 2008) (citation and internal quotation marks omitted).

            Gonzalez-Trejo’s          failure       to    raise    this     issue      below

means that he must meet the more demanding plain error standard.

See United States v. Massenburg, 564 F.3d 337, 341–42 (4th Cir.

2009) (failure to raise issue at sentencing mandates plain error

review).         In   order     to    satisfy       the    plain       error     standard,

Gonzalez-Trejo must show: (1) an error was made; (2) the error

is plain; and (3) the error affects substantial rights.                               United

                                            6
States v. Olano, 507 U.S. 725, 732 (1993).                               The decision to

correct the error lies within this court’s discretion, which

should be exercised “only if the error seriously affects the

fairness,       integrity          or      public         reputation       of      judicial

proceedings.”          Massenburg,         564    F.3d      at     343     (citation      and

internal quotation marks omitted).

            The     USSG     §     2D1.1(b)(1)        enhancement          “reflects      the

increased     danger    of       violence      when       drug    traffickers       possess

weapons”    and    should     be    applied       “if     the     weapon    was    present,

unless it is clearly improbable that the weapon was connected

with the offense.”           USSG § 2D1.1(b)(1), cmt. n.3.                       It is the

defendant’s       burden     to     show      that    a     connection         between    his

possession of a firearm and his narcotic offense is “clearly

improbable.”       United States v. Harris, 128 F.3d 850, 852 (4th

Cir. 1997) (internal quotation marks omitted).

            The     enhancement          is    proper       when    “the       weapon     was

possessed in connection with drug activity that was part of the

same   course     of   conduct      or     common     scheme       as    the    offense    of

conviction,” United States v. Manigan, 592 F.3d 621, 628–29 (4th

Cir. 2010) (citation and internal quotation marks omitted), even

in   the   absence     of    “proof      of    precisely         concurrent      acts,    for

example, gun in hand while in the act of storing drugs, drugs in

hand while in the act of retrieving a gun.”                        Harris, 128 F.3d at

852 (citation and internal quotation marks omitted).

                                              7
               Pursuant to USSG § 1B1.3(a)(1)(B), a defendant may be

held responsible for a firearm possessed by another member of

the   conspiracy       if    possession      of    the    firearm        was   “reasonably

foreseeable” to the defendant and “in furtherance of the jointly

undertaken criminal activity.”                    USSG § 1B1.3(a)(1)(B); United

States    v.    Kimberlin,     18    F.3d    1156,       1159-60    (4th       Cir.   1994).

Moreover, “[a]bsent evidence of exceptional circumstances, . . .

it [is] fairly inferable that a codefendant’s possession of a

dangerous weapon is foreseeable to a defendant with reason to

believe that their collaborative criminal venture includes an

exchange of controlled substances for a large amount of cash.”

Kimberlin,       18   F.3d    at    1160    (citation      and     internal      quotation

marks omitted and alterations in original).

               The Appellants argue that the district court erred by

holding    them       responsible     for     a    firearm       recovered       from    the

mobile    home    that      Angeles-Guzman        shared    with     his       brother   and

cousin.    The Appellants first posit that there was no evidence

that the firearm was connected to the conspiracy.                              With regard

to    Gonzalez-Trejo,        the    argument       is    taken     one    step    further,

positing that there was no evidence that Gonzalez-Trejo had ever

been to the home or was connected to it in any way.

               In this case, the evidence showed that the Appellants

were involved in a drug conspiracy which involved the steady

sale and storage of cocaine at a mobile home that Angeles-Guzman

                                             8
shared     with    his    brother    and    cousin.       Following         one   of     the

transactions,       the    one    which    resulted      in    the    arrests     of     the

Appellants, a firearm was found in the living room of the mobile

home and cocaine, which, at the time of the search, Angeles-

Guzman claimed was his, was found in a bedroom in the home.

Given     the    close    relationship      between      the    Appellants        and    the

sizeable        amount   of     cocaine    that   was    being       sold   during      the

conspiracy,        it    was    reasonably      foreseeable       to    both      of    the

Appellants that a firearm in furtherance of their joint drug

distribution        efforts       would    be     kept    in    the     mobile         home.

Kimberlin, 18 F.3d at 1160.                 Put another way, the Appellants

have not shown that it was “clearly improbable” that the firearm

was connected with the drug conspiracy.                       Accordingly, there is

no   clear      error,    let    alone    plain    error.        We    hold    that     the

district court did not err in imposing the two-level enhancement

for possession of a firearm in furtherance of the conspiracy. *



      *
        Gonzalez-Trejo contends that he received ineffective
assistance of counsel at sentencing that resulted in an improper
sentence. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997).     Rather, to allow for adequate
development of the record, federal prisoners ordinarily must
pursue such claims in a motion under 28 U.S.C. § 2255.     United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance of counsel.    King, 119 F.3d at 295.     Because our
review of the record in this appeal does not conclusively
establish   ineffective  assistance   of  counsel,  we   conclude
(Continued)
                                            9
              For the reasons stated, we affirm the judgments of the

district    court.     We    dispense    with   oral     argument    because    the

facts   and    legal   contentions      are   adequately    presented      in   the

materials     before   the   court   and      argument    would     not   aid   the

decisional process.

                                                                          AFFIRMED




Gonzalez-Trejo’s ineffective assistance claim should be brought
in a motion under § 2255.



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