                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JAN 24, 2007
                               No. 06-13838                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 05-00528-CR-T-30-MAP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

APOLINAR AGUILAR,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (January 24, 2007)

Before BIRCH, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Apolinar Aguilar appeals his 87-month sentence following his guilty plea to
one count of conspiracy to distribute and possess cocaine and three counts of

possession with intent to distribute cocaine. Aguilar argues that the district court

erred when it enhanced his sentence by two levels under section 2D1.1(b)(1) of the

Federal Sentencing Guidelines for possessing a firearm. We affirm.

      Using wiretaps during an investigation of a large cocaine and marijuana

distribution organization, law enforcement officers recorded Aguilar engaging in

drug-related conversations. With the assistance of a confidential source, law

enforcement officers also made a number of cocaine purchases from Aguilar at his

house and in a shed at the rear of his home in the fall and winter of 2005. On

December 16, 2005, officers executed a search warrant at Aguilar’s residence and

found $7,416 cash, a kilogram press, and a digital scale in the living room, 1,337.5

grams of cocaine hidden throughout the residence, multiple cell phones throughout

the residence, and a loaded Tech 9 pistol and ammunition in the bathroom.

      The probation officer found that Aguilar qualified for a two-level

enhancement for the possession of a firearm. U.S.S.G. § 2D1.1(b)(1). Aguilar

objected to the enhancement. At the sentencing hearing, Aguilar argued that the

firearm found in the house was not related to his criminal activity but was for

personal safety. He submitted evidence that his fiancée had been the victim of a

purse-snatching and a burglary. The district court found that Aguilar possessed the



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gun and that it was related to his criminal activity. The court stated, “The sales

were made from the home, and to me that’s a connection between selling from the

home and a loaded gun being in the home.”

      We review the factual findings of the district court for clear error and review

de novo the application of the Sentencing Guidelines to those facts. United States

v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001).

      The Sentencing Guidelines add two levels to the base offense level “if a

dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

“The adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” United States. v.

Cooper, 111 F.3d 845 (11th Cir. 1997) (quoting U.S.S.G. § 2D1.1(b)(1) cmt. n.3).

After the government proves by a preponderance of the evidence that a firearm was

present at the site of the charged conduct, the burden shifts to the defendant to

show “that the connection between the weapon and the offense was ‘clearly

improbable.’” Audain, 254 F.3d at 1289 (quoting United States v. Hall, 46 F.3d 62,

63 (11th Cir. 1995)).

      Aguilar argues that the government failed to establish that the firearm was

present at the site of the charged conduct because the firearm was in the bathroom

and not with any other drug paraphernalia. We disagree. When a handgun is


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found at a defendant’s home and the home is the location of the charged activity,

then the firearm is “present.” See, e.g., Hall, 46 F.3d at 63; United States v.

Hansley, 54 F.3d 709, 716 (11th Cir. 1995). Cf. Cooper, 111 F.3d at 847 (“In both

Hall and Hansley the prosecution established that weapons were present because

they were found where acts in furtherance of the conspiracies took place.”). The

record provides evidence that Aguilar’s criminal activity was not limited to any

one room of the house. The cell phones Aguilar used in furtherance of the

conspiracy and Aguilar’s cocaine were scattered throughout the residence.

      Aguilar also argues that the district court erred by not finding that the

connection between the gun and the offense was “clearly improbable.” Again, we

disagree. Although Aguilar’s fiancée had been the victim of burglary, the record

does not establish that she owned the gun, used the gun for protection, or that the

gun was purchased and maintained for her personal safety. In fact, there is no

evidence in the record of who purchased the gun or when the gun was purchased.

The district court did not err in finding that Aguilar failed to prove that the

connection between the gun and the offense was “clearly improbable.”

      Aguilar’s sentence is AFFIRMED.




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