                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-30011

                Plaintiff-Appellee,             D.C. No. 1:16-cr-00081-BLW-1

 v.
                                                MEMORANDUM*
ELEAZAR HERRERA-SANCHEZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, Chief Judge, Presiding

                          Submitted December 17, 2018**

Before:      WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

      Eleazar Herrera-Sanchez appeals the district court’s judgment and

challenges the 200-month sentence imposed following his guilty-plea conviction

for distributing methamphetamine and aiding and abetting, in violation of 21

U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       As an initial matter, we decline to enforce the appeal waiver in the plea

agreement and instead proceed to the merits of the appeal. See United States v.

Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (appeal waiver is not

jurisdictional).

       Herrera-Sanchez first contends that the district court erred by applying the

two-level dangerous weapon enhancement under U.S.S.G. § 2D1.1(b)(1). The

court did not abuse its discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167,

1170 (9th Cir. 2017) (en banc). Contrary to his contention, the record shows no

clear error in the court’s finding that Herrera-Sanchez constructively possessed the

assault rifle in question during the instant offense. See United States v. Boykin,

785 F.3d 1352, 1364 (9th Cir. 2015) (constructive possession shown by “a

sufficient connection between the defendant and the contraband to support the

inference that the defendant exercised dominion and control over the

[contraband].” (internal quotations omitted)). The cooperating witness testified

that, in exchange for methamphetamine, he sold Herrera-Sanchez the assault rifle

found in the residence where Herrera-Sanchez distributed methamphetamine. The

district court relied on this testimony regarding Herrera-Sanchez’s knowledge and

control of the rifle, as well as the undisputed evidence that the assault rifle was in

the residence where drugs were sold, in applying the enhancement. See Boykin,

785 F.3d at 1364 (application of enhancement not error where firearm with


                                           2                                     18-30011
defendant’s fingerprints found in residence at which defendant had transacted

several drug sales).

      Herrera-Sanchez also contends that the district court procedurally erred by

relying on clearly erroneous facts to impose a sentence at the higher end of the

Guidelines range. The district court’s findings that Herrera-Sanchez was

responsible for distributing a larger quantity of drugs and making threats of

violence against the cooperating witness were not clearly erroneous. See United

States v. Christensen, 828 F.3d 763, 816 (9th Cir. 2015) (stating standard). The

district court determined that the Guidelines range may have understated the

seriousness of Herrera-Sanchez’s conduct because the record indicated that (1) the

quantity of drugs involved in the overall conspiracy exceeded the amount used to

calculate the Guidelines range, and (2) he made threats of violence against a

cooperating witness. Evidence in the record, including witness testimony that the

district court found to be credible, supported these findings.

      AFFIRMED.




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