                                                                          F IL E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                   September 20, 2007
                                T E N T H C IR C U IT
                                                                   Elisabeth A. Shumaker
                           __________________________
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                              No. 06-4267
 v.                                                 (D.Ct. No. 2:06-CR-00019-PGC)
                                                                (D. Utah)
 C ESA R M ED IN A -C AB UTO ,

          Defendant-Appellant.
                          ____________________________

                                O R D E R A N D JU D G M E N T *


Before T A C H A , Chief Circuit Judge, and B A R R E T T and B R O R B Y , Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Appellant Cesar M edina-Cabuto pled guilty to possession with intent to

distribute 500 grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). He now appeals his 168-month sentence, claiming the district court’s

sentence enhancement for firearm possession under United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”) § 2D1.1 violated United States v.

Booker, 543 U .S. 220 (2005), and that this court should not, on appellate review,

apply a presumption of reasonableness to sentences, like his, which are within the

advisory Guidelines range. W e exercise jurisdiction pursuant to 18 U.S.C. § 3742

and 28 U.S.C. § 1291 and affirm M r. M edina-Cabuto’s sentence.




                       I. Factual and Procedural Background

      Evidence presented to the district court included information that from

April through August 2005 agents with a narcotics strike force were investigating

an individual they believed was distributing large quantities of methamphetamine

in the Ogden, Utah, area. As part of that investigation, agents also began

conducting surveillance of two other individuals, Victor Rios-Chavez and Jaime

Olivarria-Lora. An informant advised agents that M r. Rios-Chavez and M r.

Olivarria-Lora had received a large shipment of methamphetamine which they

were transporting from California to W est Valley City, Utah, where they intended

to dilute the drug and sell it. Evidence also later disclosed the defendant, M r.



                                          -2-
M edina-Cabuto, traveled from California to U tah w ith M r. Rios-Chavez and M r.

Olivarria-Lora.




      Agents performed surveillance on a residence where the informant believed

the methamphetamine would be delivered. During their surveillance, agents

witnessed M r. Rios-Chavez arrive; later, M r. Olivarria-Lora and M r. M edina-

Cabuto arrived and carried multiple heavy items into the house. The informant

then helped purchase items needed to cut the methamphetamine; assisting him

was Rafael Solis-M edina, an individual described as the “muscle” of the

operation, who was known to use force to collect money for the drug operation.




      Agents then executed a search warrant on the residence, where they found

M r. M edina-Cabuto and M r. Olivarria-Lora in the garage, together with thirteen

pounds of methamphetamine drying on a horizontal glass window. 1 In the garage

they also discovered various items used to “cut” methamphetamine, including

M SM , a fan, a hot plate, rubber gloves, tow els, denatured alcohol, scales, bags,

and a knife with residue on it. The other individuals w ere found in the house; in



      1
          W hile the presentence report seems to contradictorily state that M r.
“M edina” was found both in the garage and in the house, a review of the record
clarifies that both M r. M edina-Cabuto and M r. Solis-M edina were, in that
instance, referred to as M r. “M edina,” but that M r. M edina-Cabuto was found in
the garage and M r. Solis-M edina was found in the living room of the house.

                                         -3-
addition, in one upstairs bedroom, agents located documents in the names of both

M r. Olivarria-Lora and M r. Rios-Chavez, as well as three loaded handguns and

amm unition on a shelf in a closet. An additional fifty rounds of ammunition for

one of the firearms were discovered in a closet in the main hallw ay of the house.

In the laundry room, agents also recovered a heat-sealed bag containing a large

amount of methamphetamine. After conducting a lab analysis, the government

concluded the methamphetamine found in the garage totaled 296.4 grams and the

methamphetamine found in the laundry room totaled 303.8 grams.




      Following his indictment for possession of methamphetamine with intent to

distribute, M r. M edina-Cabuto entered into a written plea agreement in which he

agreed to plead guilty to possession with intent to distribute 500 grams or more of

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

guilty plea, the government agreed not to charge him with a gun offense or to

seek an indictment for illegal reentry and also agreed to recommend a sentence at

the low end of the Guidelines sentencing range. In his statement in advance of

his guilty plea, M r. M edina-Cabuto stipulated that during the search of the

residence agents recovered approximately 600 grams of methamphetamine which

belonged to him and his co-defendants and that they intended to sell the

methamphetamine; he further admitted that, “either [as] a principal or as an



                                         -4-
accomplice,” he “knowingly and intentionally possessed 500 grams or more of ...

methamphetamine with intent to distribute.” At his plea hearing, M r. M edina-

Cabuto pled guilty, again acknowledging the 600 grams of methamphetamine

belonged to him and his co-defendants and that they intended to sell or distribute

it.




      Following the district court’s acceptance of M r. M edina-Cabuto’s guilty

plea, a probation officer prepared a presentence report, calculating his base

offense level at 36 based on the stipulated drug type and amount of at least 500

grams but less than 1.5 kilograms of methamphetamine. The probation officer

also recommended a two-level increase in the offense level for possession of a

dangerous weapon under U.S.S.G. § 2D1.1.(b)(1), which in this case involved

recovery of firearms; he also recommended a three-level reduction in the offense

level for M r. M edina-Cabuto’s acceptance of responsibility. W ith a total offense

level of 35 and a criminal history category of I, the resulting advisory Guidelines

range calculation totaled 168 to 210 months imprisonment. The probation officer

also pointed out ten years was the statutory minimum sentence for M r. M edina-

Cabuto’s offense.




      Thereafter, M r. M edina-Cabuto filed objections to the presentence report,



                                         -5-
which included an argument against the two-level offense increase for possession

of a firearm, based on his argument he: 1) arrived at the Utah residence only

three hours before the search; 2) was downstairs (in the garage) when agents

found the guns in the upstairs bedroom of another defendant; and 3) was unaw are

of the presence of firearms in the home. He also argued against the Guidelines

range of 168 to 210 months imprisonment, stating the minimum statutory sentence

of ten years was the proper sentence under 18 U.S.C. § 3553.




      At the sentencing hearing M r. M edina-Cabuto again objected to application

of the firearm enhancement, arguing in part that he should not be tagged with a

gun located in a house he entered only a couple of hours earlier. In turn, the

government explained § 2D1.1 only requires a showing of mere proximity of the

guns to the drugs and a reasonable foreseeability firearms would be involved or

possessed by others in distribution of those drugs, regardless of w hether a

conspiracy is charged. 2



      2
          The government further explained the presence of a gun would be
foreseeable to M r. M edina-Cabuto based on: 1) the large quantity and level of
drug distribution, which in this case involved drugs valued at $300,000 in their
uncut form; 2) a reasonable presumption that those involved in the distribution
scheme w ould protect their drug assets by arming them selves; 3) the fact M r.
Solis-M edina was present at the house for protection of the drug operation; 4) the
fact M r. M edina-Cabuto was involved with the large California drug cartel
supplying the drugs found; 5) M r. M edina-Cabuto’s presence in the Utah
                                                                      (continued...)

                                         -6-
      Following the parties’ arguments, the district court applied the firearm

enhancement to the sentence, determining M r. M edina-Cabuto could reasonably

foresee the presence of firearms in the residence in connection with the protection

of the large quantity of drugs he pled guilty to distributing. It then imposed a

sentence of 168 months imprisonment, concluding such a sentence was

appropriate, given the seriousness of the drug offense.




                                   II. Discussion

                             A. Firearm Enhancement

      M r. M edina-Cabuto now appeals his 168-month sentence, based in part on

his argument the district court’s enhancement of his sentence for gun possession

under U.S.S.G. § 2D1.1 violated Booker. In so arguing, he suggests: 1) he did

not admit to possession of any guns; 2) he arrived at the home only a few hours

before the search and was on the bottom floor of the residence when the gun was

found in a co-defendant’s bedroom on the upper floor; 3) no evidence proves he

brought drugs into the house; 4) he was not mentioned in any of the reports




      2
       (...continued)
residence at the same time as the drugs and firearms; and 6) the unlikelihood
others would allow him into a residence with such a large quantity of drugs and
drug cutting paraphernalia if he did not have a significant role in the drug
enterprise.


                                         -7-
concerning the investigation; 5) no reports or other documents show he possessed,

used, handled, or was present around the firearms; 6) the probation officer

submitted no information to support the gun possession enhancement, and,

instead, the government asked the district court to make “a lot of” inferences from

the evidence presented to apply such an enhancement; 7) no jury determined he

possessed a gun; and 8) Booker prevents a judge from making such a finding.




      W e begin our discussion with our standard of review and the applicable

legal principles. “Even after Booker, when reviewing a district court’s

application of the Sentencing Guidelines, we review legal questions de novo and

... any factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289,

1295 (10th Cir. 2006) (quotation marks and citations omitted). The Sentencing

Guideline at issue, § 2D1.1(b)(1), provides for a two-level enhancement “[i]f a

dangerous weapon (including a firearm) was possessed” during the drug

trafficking offense, and reflects the “increased danger of violence when drug

traffickers possess weapons.” U.S.S.G. § 2D1.1, cmt. n.3. Commentary to

§ 2D1.1(b)(1) further states that the enhancement applies “if the weapon was

present, unless it is clearly improbable that the weapon was connected with the

offense.” Id. Generally, we have held possession under § 2D1.1(b)(1) is



                                           -8-
“satisfied by showing mere proximity to the offense.” United States v. Smith, 131

F.3d 1392, 1400 (10th Cir. 1997). “This burden is satisfied when the government

demonstrates that a temporal and spacial relation existed between the weapon, the

drug trafficking activity, and the defendant.” United States v. W illiams, 431 F.3d

1234, 1237 (10th Cir. 2005) (quotation marks and citation omitted), cert. denied,

547 U.S. 1091 (2006). As a result, the government need only show the weapon

was found in the same location where drugs or drug paraphernalia are stored, or

in the general vicinity of where part of the drug activity occurred. See id.

Nothing in our case law or the Guidelines requires that the drugs and firearms be

found together in the same room for a firearm enhancement to apply.




      In addition, “Section 1B1.3(a)(1) directs courts applying a specific offense

characteristic such as 2D1.1(b)(1) to consider ‘all acts and omissions committed

or aided and abetted ... that occurred during the commission of the offense,’”

which includes “‘conduct of others in furtherance of the execution of the jointly-

undertaken criminal activity that was reasonably foreseeable by the defendant,’

regardless whether a conspiracy is charged.” United States v. M cFarlane, 933

F.2d 898, 899 (10th Cir. 1991) (quoting U.S.S.G. § 1B1.3(a)(1)(A) and (B) &

cmt. n.2). “Together these provisions permit sentencing courts to attribute to a

defendant weapons possessed by his codefendants if the possession of weapons



                                         -9-
was known to the defendant or reasonably foreseeable by him.” Id. And finally,

we have long recognized firearms are “tools of the trade” for drug traffickers.

See United States v. M artinez, 938 F.2d 1078, 1083 (10th Cir. 1991).




      In this case, the firearms and ammunition were located in the same

residence at the same time as large amounts of methamphetamine, cutting

paraphernalia, and other drug related items, making it clear the entire residence,

including the garage, was the locus of a large drug-trafficking operation. Because

the guns and ammunition were found in the same residence or vicinity as this

large-scale drug-trafficking operation and were clearly accessible to the co-

defendants involved, we cannot say the district court erred in its determination the

drugs and other paraphernalia were in the proximity of the firearms for the

purpose of applying the enhancement.




      Having determined the requisite proximity existed between the contraband

and firearms, we turn to the foreseeability issue to determine if M r. M edina-

Cabuto could have reasonably foreseen that others involved in the large drug-

trafficking operation would possess firearms. The evidence presented indicates

M r. M edina-Cabuto was directly involved or played a significant role in the

instant drug operation, as further corroborated by his stipulation that the 600



                                         -10-
grams of methamphetamine belonged to him and his co-defendants and that they

intended to sell or distribute it. Based on his significant role or participation in

the operation, together with the volume and open visibility of the

methamphetamine and cutting materials, it would be clear to M r. M edina-Cabuto,

even if he arrived at the residence only hours before, that it was the locus of a

rather large drug-trafficking operation and that firearms w ould likely be used to

protect such an operation. Based on these circumstances, the district court did not

comm it clear error in determining M r. M edina-Cabuto could reasonably foresee

that others participating with him in the jointly-undertaken criminal activity

would possess firearms for the protection of those drugs.




      M oreover, M r. M edina-Cabuto has not offered any evidence or reasoning

sufficient to demonstrate the firearms were unconnected to his criminal conduct.

His argument he did not admit to possession of any guns and that no evidence

show ed he possessed or handled the guns is immaterial under the applicable law,

as is the fact that he was not found in the same room where the firearms were

located. Given he pled guilty to the offense charged, we also find unavailing and

immaterial his argument that no evidence proved he brought drugs into the house.

W hile he suggests the probation officer submitted no information to support the

gun possession enhancement, the record on appeal is replete with evidence



                                          -11-
supporting the district court’s application of the enhancement.




      Next, we reject M r. M edina-Cabuto’s argument a jury, and not a judge,

must make factual findings in applying the firearm enhancement. We have held

Booker permits enhancement of a sentence on the basis of judicial fact-finding by

a preponderance of the evidence when the G uidelines are applied, as they were

here, in an advisory manner. See United States v. Bustamante, 454 F.3d 1200,

1202 (10th Cir. 2006). Having rejected M r. M edina-Cabuto’s argument the judge

improperly made factual findings in applying the firearm enhancement, we also

disagree with his assertion it impermissibly drew inferences from the evidence

presented. W e have long held the weight to be given evidence, together with the

inferences, deductions, and conclusions to be drawn from such evidence, is a

matter most appropriate for resolution by the district court. See United States v.

Guerrero, 472 F.3d 784, 789 (10th Cir. 2007); United States v. Walker, 933 F.2d

812, 815 (10th Cir. 1991).




                        B. Presumption of Reasonableness

      W e now turn to M r. M edina-Cabuto’s argument that in reviewing the

reasonableness of his sentence under the sentencing factors set out in 18 U.S.C.

§ 3553(a), this court cannot, on appellate review, apply a presumption of



                                        -12-
reasonableness to his sentence, which is within the advisory Guidelines range.

W e note that in this case the district court sentenced M r. M edina-Cabuto within

the Guidelines range and he does not claim the Guidelines range itself was

improperly calculated, but only that the application of the firearm enhancement

under § 2D1.1 was unreasonable. Having rejected the latter contention, we turn

to the uncontested calculation of his sentence and our standard of review.




      In reviewing M r. M edina-Cabuto’s sentence, we review for reasonableness

the sentence’s length, as guided by the factors in 18 U.S.C. § 3553(a). See United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). W e

recognize that the district court has significant discretion in sentencing, and our

review for reasonableness is a review for an abuse of discretion. See Rita v.

United States, ___ U.S. ___, 127 S. Ct. 2456, 2465 (2007); United States v.

Garcia-Lara, ___ F.3d ___, 2007 W L 2380991, at **3-4 (10th Cir. Aug. 22,

2007). In conjunction with this standard of review, our binding precedent has

been to give sentences “properly calculated under the Guidelines ... a rebuttable

presumption of reasonableness.” Kristl, 437 F.3d at 1054. The Supreme Court

recently affirmed our application of the presumption of reasonableness to within-

Guidelines sentences. See Rita, ___ U.S. at ___, 127 S. Ct. at 2465; see also

Garcia-Lara, 2007 W L 2380991, at **3-4.



                                         -13-
      Having considered M r. M edina-Cabuto’s sentence under our standard of

review and binding precedent, we find no abuse of discretion in the 168-month

sentence imposed, which is within the advisory Guidelines range of 168 to 210

months imprisonment. The district court in this case explicitly considered the

factors in § 3553(a), and we continue to apply a presumption of reasonableness to

M r. M edina-Cabuto’s sentence, which is within the correctly-calculated

Guidelines range, and which he has not rebutted. See Kristl, 437 F.3d at 1053-55.




                                 III. Conclusion

      For the foregoing reasons, we A FFIR M M r. M edina-Cabuto’s sentence.




                                      E ntered by the C ourt:

                                      WADE BRORBY
                                      United States Circuit Judge




                                        -14-
