                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 4 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 99-3373
 EMILIO GUTIERREZ, JR., also                  (D.C. No. 99-CR-20038-KHV)
 known as Emilio Gutierrez, II,                          (D.Kan.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT     *




Before EBEL and BRISCOE, Circuit Judges, and       COOK , District Judge.   **




      Defendant Emilio Gutierrez appeals the district court’s decision to enhance

his sentence pursuant to United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”) § 2D1.1(b)(1). We exercise jurisdiction under 28 U.S.C. § 1291

and affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable H. Dale Cook, Senior District Judge, Northern District
of Oklahoma, sitting by designation.
                                             I

       This case comes to us as a result of a plea bargain. In February 1999,

officers from the Shawnee, Kansas, Police Department arrived at Gutierrez’s

residence and conducted a consensual search of his bedroom. Gutierrez shared

this residence with his parents.   During the search, officers discovered 419 grams

of “a mixture or substance containing cocaine hydrochloride,” $19,833.00 in cash,

ten firearms, a silencer, and “assorted ammunition.” Record on Appeal, Vol. IV,

at 3-4 (¶ 6). Gutierrez ultimately pleaded guilty to one count of possessing a

controlled substance in violation of 21 U.S.C. § 841(a)(1).   In exchange for

Gutierrez’s plea, the government agreed not to oppose a three-level sentencing

reduction for acceptance of responsibility. The government also conditionally

agreed to file a motion for a downward departure under U.S.S.G. § 5K1.1.

       After Gutierrez entered his plea, the district court conducted a sentencing

hearing. To support his objection to a sentence enhancement for the possession of

a dangerous weapon,     Gutierrez elicited testimony from his mother, Aurora

Gutierrez. Mrs. Gutierrez testified that her son collected guns and kept the guns

in his room behind a locked door. To Mrs. Gutierrez’s knowledge, the guns in

her son’s room were unloaded.      Mrs. Gutierrez also explained that her husband

had “always collected guns” and kept them in a locked cabinet. Record on

Appeal, Vol. III, at 7. According to Mrs. Gutierrez, her husband and her son read


                                            2
magazines about firearms and engaged in “target practice.”      Id. at 9. 1

Unpersuaded by this testimony, the district court overruled Gutierrez’s objection

and increased his sentence by two levels pursuant to U.S.S.G. § 2D1.1(b)(1).

This enhancement raised Gutierrez’s offense level to 23, increasing his Guideline

range from 37-46 months to 46-57 months.         The court then sentenced Gutierrez to

a prison term of 46 months, noting that it would have imposed the same sentence

even if Gutierrez’s objection had been sustained.    2



                                            II

      We first address whether we have jurisdiction over this appeal. In an order

to show cause issued in December 1999, we ordered the parties to address (1)

whether Gutierrez filed his notice of appeal in a timely manner; and (2) whether

Gutierrez’s appeal concerns a discretionary refusal to grant a downward

departure. As to the first issue, Federal Rule of Appellate Procedure 4(b)(1)


      1
         Mrs. Gutierrez acknowledged that she was unaware her son had cocaine
in his room. She further acknowledged that she did not know whether her son
sold the drugs from the residence, or whether he carried any firearms during the
sales.
      2
         Although the district court’s remark that it would have imposed the same
sentence under either scenario could conceivably support a finding of harmless
error, we decline to address this issue. First, the government makes no argument
in its appellate brief that the district court’s decision should be affirmed on
“harmlessness” grounds. Second, as discussed below, the district court’s
decision to enhance Gutierrez’s sentence was not clearly erroneous. Because we
affirm the district court on that basis, we need not consider “harmlessness” as an
alternative rationale.

                                            3
requires a criminal defendant to file a notice of appeal within ten days “of either

the judgment or the order being appealed.” Gutierrez did not file his notice of

appeal within this ten-day window. However, in compliance with Federal Rule of

Appellate Procedure 4(b)(4), Gutierrez obtained a 17-day extension of time from

the district court. This extension rendered Gutierrez’s notice of appeal timely.

As to the second issue, we normally “lack jurisdiction to review a sentencing

court’s discretionary denial of a downward departure.”        United States v. Guidry ,

199 F.3d 1150, 1161 (10th Cir. 1999). The instant case involves an allegedly

improper sentence enhancement, not a discretionary refusal to depart downward.

Accordingly, we have jurisdiction to consider the merits of the dispute.

       Section 2D1.1(b)(1) of the Guidelines directs a district court to enhance a

defendant’s sentence by two levels if it determines that “a dangerous weapon

(including a firearm) was possessed” during the predicate drug trafficking crime.

This enhancement “is designed to reflect the increased danger of violence when

drug traffickers add firearms to the mix.”       United States v. Flores , 149 F.3d 1272,

1280 (10th Cir. 1998), cert. denied , 525 U.S. 1092 (1999); accord United States v.

Dickerson , 195 F.3d 1183, 1188 (10th Cir. 1999). The initial burden is on the

government “to prove possession of the weapon by a preponderance of the

evidence.” United States v. Humphrey , 208 F.3d 1190, 1210 (10th Cir. 2000);

accord United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997). The


                                             4
government can discharge this burden by showing that “a weapon was located

near the general location where at least part of a drug transaction occurred.”

United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999)     ; see also United

States v. Lang , 81 F.3d 955, 964 (10th Cir. 1996) (remarking that the government

must prove that “a temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant”) (citation omitted). “Once the

government establishes that the gun was possessed in proximity to the drugs or

transaction, the burden shifts to the defendant to ‘show it is clearly improbable

that the weapon was related to the offense.’”     Flores , 149 F.3d at 1280 (quoting

United States v. Robertson , 45 F.3d 1423, 1449 (10th Cir. 1995));      accord Smith ,

131 F.3d at 1400. “We review the district court’s interpretation of § 2D1.1(b)(1)

de novo and the court’s underlying factual findings for clear error.”      Dickerson ,

195 F.3d at 1188; see also Vaziri , 164 F.3d at 568 (commenting that we “give due

deference to the application of the Guidelines to the facts”).

       Gutierrez contends the evidence adduced at the sentencing hearing

demonstrated that it was clearly improbable that the guns in his room were related

to the underlying offense. Relying on his mother’s testimony, Gutierrez claims

that “the firearms were possessed for collection and no other purpose,”

Appellant’s Brief at 3, and highlights the following passage from Application

Note 3 to § 2D1.1: “The adjustment should be applied if the weapon was present,


                                             5
unless it is clearly improbable that the weapon was connected with the offense.

For example, the enhancement would not be applied if the defendant, arrested at

his residence, had an unloaded hunting rifle in the closet.” Gutierrez also notes

that the government presented nothing to contradict his mother’s testimony, and

maintains that “[t]he absence of any evidence to the contrary leaves but one

reasonable interpretation of the evidence: that the guns were unrelated to the

cocaine.” Appellant’s Brief at 3.

      We conclude that the district court’s application of § 2D1.1(b)(1) was not

clearly erroneous. First, we reject Gutierrez’s claim that his case is controlled by

Application Note 3 to § 2D1.1. Nothing in the appellate record indicates that the

firearms and silencer found in Gutierrez’s room were “hunting” guns.     Cf. United

States v. Lopez-Sandoval , 146 F.3d 712, 716 (9th Cir. 1998) (rejecting a

defendant’s attempt to invoke Application Note 3 and affirming the district

court’s finding that handguns found in the defendant’s home “were not hunting

rifles”). Moreover, Application Note 3 “speaks only of arresting a defendant at

his apartment, with the implication that the drug offense has taken place

elsewhere.” United States v. Green , 889 F.2d 187, 189 (8th Cir. 1989). Here,

officers discovered Gutierrez’s guns in the same room as the illegal drugs.

Second, Mrs. Gutierrez’s testimony that her son was a gun collector hardly

demonstrates that it was “clearly improbable” that the guns were related to the


                                           6
underlying offense. As the government aptly notes in its brief, “the existence of a

gun collection and the use of firearms in connection with a drug offense are not

mutually exclusive.” Brief of Appellee at 6       . Put another way, “the use or

intended use of firearms for one purpose, even if lawful, does not preclude the

use of the firearm for the prohibited purpose of facilitating drug trade, and

therefore does not automatically remove the firearm from the purview of U.S.S.G.

§ 2D1.1(b)(1).”   Brown v. United States , 169 F.3d 531, 533 (8th Cir. 1999).

Third, the fact that the guns in Gutierrez’s room may have been unloaded also

fails to establish “clear improbability.” Officers discovered not only guns but

also “assorted ammunition” in Gutierrez’s room. The presence of ammunition

suggests that the guns could have been loaded if necessary.       Cf. Green , 889 F.2d

at 189 (affirming a sentence enhancement in part because an unloaded gun “was

readily accessible” to the defendant, “as was her ammunition supply, for use

during a drug transaction”). Furthermore, “[t]hat a weapon is unloaded is not

dispositive” for purposes of § 2D1.1(b)(1).       United States v. Caicedo , 103 F.3d

410, 412 (5th Cir. 1997);   accord United States v. Rowley , 975 F.2d 1357, 1363-64

(8th Cir. 1992); United States v. Heldberg , 907 F.2d 91, 94 (9th Cir. 1990).      3
                                                                                       The


      3
        As the Fifth Circuit explained in     United States v. Paulk , 917 F.2d 879
(5th Cir. 1990), § 2D1.1(b)(1)

      was designed to provide added punishment for those drug offenders
                                                                  (continued...)

                                              7
district court did not err in enhancing Gutierrez’s sentence under U.S.S.G.

§ 2D1.1(b)(1).

      AFFIRMED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




      3
       (...continued)
      who heighten the danger inherent in drug trafficking by possession
      of dangerous weapons. The mere presence of a handgun can escalate
      the danger inherent in such situations. Since it is difficult, if not
      impossible to tell from sight whether a gun is loaded or operational,
      an unloaded or broken gun may be of use in a criminal act. Flashing
      an unloaded gun often has the same effect as waving a loaded one.
      It “‘[i]nstills fear in the average citizen’ and ‘as a consequence . . .
      creates an immediate danger that a violent response will ensue.’”
      Although the gun may not be able to inflict harm, its appearance may
      evoke it.

Id. at 882 (citations omitted, brackets and ellipsis in original).

                                           8
