                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-4139


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MARIO ALBERTO MONDRAGON,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, District Judge. (5:14-cr-00058-RLV-DSC-1)


Argued: March 24, 2017                                         Decided: June 21, 2017


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Motz
and Judge Diaz joined.


ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, North Carolina, for Appellant. Elizabeth Margaret Greenough, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       After Mario Mondragon was convicted by a jury of conspiracy to distribute

methamphetamine and of possession with the intent to distribute methamphetamine, the

district court sentenced him to 360 months’ imprisonment. In determining Mondragon’s

sentence, the court applied a two-level enhancement for possession of a weapon, as

provided in U.S.S.G. § 2D1.1(b)(1) — an enhancement designed to “reflect[] the

increased danger of violence when drug traffickers possess weapons,” id. § 2D1.1(b)(1)

cmt. n.11(A). In doing so, the court relied on statements from two coconspirators, one

who first met Mondragon during and as part of the conspiracy and who reported that he

“saw Mondragon take apart or ‘break down’ a revolver pistol while at [the

coconspirator’s] residence,” and the other who reported that he had seen “Mondragon

with at least two handguns” in the past.

       Challenging the district court’s application of the enhancement, Mondragon argues

that the record does not show that his firearm possession bore any relation to his drug-

trafficking activities and therefore that the enhancement does not apply. We conclude,

however, that the government provided the district court with sufficient evidence to

support a finding that Mondragon possessed a firearm in connection with his drug-

distribution activities, and accordingly we affirm.


                                             I

       Following Mondragon’s arrest in June 2014, a federal grand jury returned an

indictment charging him in one count with participation in a conspiracy from 2012 until


                                             2
June 2014 to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, and

in a second count with possession with the intent to distribute methamphetamine on July

13, 2013, as well as aiding and abetting the same, in violation of 21 U.S.C. § 841 and 18

U.S.C. § 2. A jury convicted Mondragon on both counts.

      The evidence that the government presented at trial included statements that

Mondragon had previously made during interviews with law enforcement officers

admitting his involvement in a multi-kilogram methamphetamine trafficking conspiracy.

During these interviews, he stated further that “his closest associate in [the] drug

trafficking organization was Garry Carroll,” whom he had first met in August 2012 when

he provided Carroll with one-half a kilogram of methamphetamine. Carroll testified

similarly, stating that when another drug dealer first introduced him to Mondragon in

2012 or 2013, he began to buy methamphetamine from Mondragon for distribution.

Another coconspirator, Donald Young, also testified to purchasing methamphetamine

from Mondragon for distribution, also beginning in 2012, although Young stated that he

had known Mondragon for five or six years.

      In preparation for sentencing, the probation office prepared a presentence report

that concluded that Mondragon was accountable for at least 26 kilograms of

methamphetamine, resulting in a base offense level of 38. The report also recommended

that Mondragon receive a three-level enhancement under U.S.S.G. § 3B1.1(b) for being a

manager or supervisor in the drug-trafficking conspiracy and that he receive a two-level

enhancement under § 2D1.1(b)(1) because he “possessed a firearm during the course of

the conspiracy.” The resulting offense level of 43, when combined with Mondragon’s

                                             3
Criminal History Category I, resulted in a Guidelines recommended sentence of life

imprisonment.

       In connection with the weapon enhancement, the presentence report noted that

during a debriefing with law enforcement officers, Carroll reported that he had seen

“Mondragon take apart or ‘break down’ a revolver pistol while at Carroll’s residence.”

The report also noted that Carroll had indicated that Mondragon had told him that he

“had killed two individuals from his town and could not return,” a statement corroborated

by Mondragon himself, who acknowledged that “he [had] attempted to intimidate

customers in order to collect money faster, by telling stories of [having] kill[ed] people in

Mexico.” The report further noted that, while the conspiracy was ongoing, Mondragon

made threatening statements in telephone calls to Carroll regarding other coconspirators,

including Young. Finally, the report noted that Young had also told officers that he had

previously seen Mondragon “with at least two handguns.”

       Mondragon objected to the two-level weapon enhancement, arguing that “the

firearm in question had no relationship to any drugs.”         And his counsel argued at

sentencing that, while the presentence report indicated that Carroll had stated that he had

seen Mondragon “taking a pistol apart and cleaning it” and that Young had stated that he

had seen Mondragon with firearms a couple of times in the past, there was “no

indication” in either of the coconspirators’ statements that the weapons “had anything to

do with drugs [or] that there were any drugs around” at the time.               As counsel

summarized:



                                             4
       So we would argue that, you know, while, yes, there is some minimal
       evidence that at some point in time in his life he may have, you know,
       touched a firearm or cleaned one, there is no credible evidence or no
       evidence at all that it had anything at all to do with any drugs and that this
       enhancement should not apply.

       The district court overruled Mondragon’s objection, “finding that the information

from both of the co-conspirators represents a preponderance of evidence on that

question.”   After the court adopted the presentence report and concluded that the

probation office had accurately calculated Mondragon’s advisory sentence as life

imprisonment, the court, after applying the 18 U.S.C. § 3553 factors, concluded that a life

sentence was not warranted and accordingly imposed a downward-variance sentence of

360 months’ imprisonment.

       From the district court’s judgment dated March 1, 2016, Mondragon filed this

appeal, challenging only the district court’s application of the two-level enhancement for

possession of a weapon.


                                             II

       Mondragon argues that the district court clearly erred in applying the two-level

weapon enhancement under U.S.S.G. § 2D1.1(b)(1) because the government failed to

present evidence showing that his “possession of [a] firearm had [any] relation to drug

trafficking activity.” In making this argument, he relies on United States v. McAllister,

272 F.3d 228 (4th Cir. 2001), which reversed the application of the weapon enhancement

under § 2D1.1(b)(1) because “[w]ithout a description by [the witness] of the

circumstances under which he saw [the defendant] possess handguns, the district court


                                             5
could only speculate regarding whether [the witness] ever observed [the defendant] in

possession of a handgun during a drug transaction,” id. at 234. He maintains that the

same is true here, as the government failed to establish the necessary relationship

between his possession of a firearm and his offense of conviction.

       The Sentencing Guidelines provide that when sentencing a defendant convicted of

drug offenses, the defendant’s base offense level should be increased by two levels “[i]f a

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

commentary to this provision explains that the 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.” Id. § 2D1.1(b)(1) cmt. n.11(A) (emphasis added). The commentary goes

on to provide, as an example, that the enhancement “would not be applied if the

defendant, arrested at [his] residence, had an unloaded hunting rifle in the closet.” Id.

Thus, while the Guidelines’ text focuses on the weapon’s possession, the commentary

explains that the enhancement applies if the weapon was “present,” unless not

“connected with the offense,” making clear, by negative pregnant, that the weapon must

be connected with the offense. Accordingly, we have held that “[t]he 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. Slade, 631 F.3d 185, 189 (4th Cir. 2011) (quoting United States v. Manigan, 592

F.3d 621, 628–29 (4th Cir. 2010)).



                                            6
      The government bears the initial burden of proving, by a preponderance of the

evidence, that the weapon was possessed in connection with the relevant illegal drug

activity. See Manigan, 592 F.3d at 628, 630. To do so, however, it need not prove

“precisely concurrent acts,” such as a “gun in hand while in the act of storing drugs [or]

drugs in hand while in the act of retrieving a gun.” United States v. Johnson, 943 F.2d

383, 386 (4th Cir. 1991) (per curiam). Rather, the government need prove only that the

weapon was “present,” which it may do by establishing “‘a temporal and spatial relation’

linking ‘the weapon, the drug trafficking activity, and the defendant.’” United States v.

Bolton, _____ F.3d _____, No. 16-4077, 2017 WL 2468720, at *4 (4th Cir. June 7, 2017)

(quoting United States v. Clark, 415 F.3d 1234, 1241 (10th Cir. 2005)); see also, e.g.,

McAllister, 272 F.3d at 234 (“In order to prove that a weapon was present, the

Government need show only that the weapon was possessed during the relevant illegal

drug activity” (emphasis added)). If the government carries its burden, the sentencing

court presumes that the weapon was possessed in connection with the relevant drug

activity and applies the enhancement, unless the defendant rebuts the presumption by

showing that such a connection was “clearly improbable.” U.S.S.G. § 2D1.1(b)(1) cmt.

n.11(A); see also Slade, 631 F.3d at 189; Manigan, 592 F.3d at 630 n.8. In attempting to

make this showing, the defendant may rely on “circumstantial evidence, such as the type

of weapon involved and its location or accessibility.” Bolton, _____ F.3d at _____, 2017

WL 2468720, at *4.

      Applying these principles, we conclude that the government met its burden of

presenting sufficient evidence from which the district court could find that Mondragon’s

                                            7
possession of a firearm was related to his drug-trafficking activity in that the firearm was

present — that is, it was temporally and spatially related to the activity. First, as to the

temporal aspect, the record shows that the drug-trafficking conspiracy of which

Mondragon was convicted began in 2012 and was ongoing until his arrest in June 2014.

Moreover, Carroll, who knew Mondragon only during the time period of the conspiracy,

described seeing Mondragon “take apart or ‘break down’ a revolver pistol while at

Carroll’s residence.”   Because this incident necessarily took place during the drug-

trafficking conspiracy, this evidence satisfied the temporal requirement.         Carroll’s

statement was also sufficient to establish a spatial or qualitative link between

Mondragon’s firearm possession and his drug-trafficking activity. While there was no

direct evidence that Mondragon was at Carroll’s house to further their drug-trafficking

conspiracy, the circumstantial evidence supports such a finding. Mondragon himself

acknowledged that Carroll was “his closest associate in [the] drug trafficking

organization,” and the record indicates that their relationship began and continued on the

basis of their drug-trafficking activities. It was thus reasonable for the district court to

infer that Mondragon’s visit to Carroll’s house was related to those ongoing activities, an

inference that is only reinforced by the evidence that Mondragon intended, as part of the

conspiracy, “to intimidate customers in order to collect money faster.” Indeed,

Mondragon’s act of breaking down his revolver while at Carroll’s house — along with

his statement to Carroll that he “had killed two individuals from his town [in Mexico] and

could not return” and his practice of making threatening statements to Carroll regarding

other coconspirators — can be viewed as a pattern of intimidation.

                                             8
      We thus conclude that the government presented sufficient evidence from which

the district court could find, by a preponderance of the evidence, that Mondragon’s

possession and display of a revolver pistol while at the house of his closest drug-

trafficking associate bore a sufficient relationship to his ongoing drug-trafficking

conspiracy to link the firearm temporally and spatially to the conspiracy.       Because

Mondragon did not even attempt to rebut the government’s showing by establishing that

it was “clearly improbable” that his possession of the firearm at Carroll’s residence was

connected with the conspiracy offense, the district court did not clearly err in applying

the enhancement.

      Mondragon’s reliance on McAllister provides him with little to no support. In

McAllister, the defendant was sentenced for possession with intent to distribute cocaine

on a particular date, and the district court applied the weapon enhancement based on the

testimony of one of the defendant’s drug suppliers, who said simply that he saw the

defendant with handguns “on many occasions.” 272 F.3d at 233. In reversing the district

court’s application of the weapon enhancement, we said that the district court clearly

erred because the witness never stated that he “saw McAllister with a handgun during a

narcotics transaction,” and “[w]ithout a description by [the witness] of the circumstances

under which he saw McAllister possess handguns, the district court could only speculate

regarding whether [the witness] ever observed McAllister in possession of a handgun

during a drug transaction.” Id. at 234 (emphasis added). But unlike McAllister, who

was convicted for an offense committed on a single date, Mondragon was convicted of

conspiracy that continued over the period of some two and one-half years. And, as noted

                                            9
already, Carroll’s testimony about seeing Mondragon with a firearm could have only

referred to an incident that occurred during the course of the conspiracy. To be sure,

coconspirator Young also said that he saw Mondragon with handguns, but his testimony

was unlimited in time, referring only to the past, which included a time period before the

conspiracy, since Young and Mondragon had known each other for five to six years.

Accordingly, Young’s testimony alone would not have been sufficient to show

possession during the conspiracy, but Carroll’s testimony clearly sufficed.


                                          III

       At oral argument, Mondragon argued for the first time that the government failed

to show adequately that he possessed a weapon at all because it relied solely on the

presentence report’s summary of his coconspirators’ statements to law enforcement

officers, instead of testimony presented in court.

       While it is doubtful that Mondragon appropriately preserved this argument, see

IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) (“Failure

to present or argue assignments of error in opening appellate briefs constitutes a waiver

of those issues”), we nonetheless conclude that it lacks merit.

       It is well established that a court may, for purposes of sentencing, consider “any

relevant information before it, including uncorroborated hearsay, provided that the

information has sufficient indicia of reliability to support its accuracy.” United States v.

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).         Moreover, the defendant bears “an

affirmative duty” to show “that the information in the presentence report is unreliable,


                                             10
and articulate the reasons why the facts contained therein are untrue or inaccurate.”

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Because Mondragon did not

attempt to make this showing at sentencing — indeed, he conceded that his

coconspirators’ statements, as described in the presentence report, provided “some

minimal evidence” that he had previously possessed firearms — the court was entitled to

credit the unchallenged witness statements summarized in the presentence report when

determining whether the enhancement provided in U.S.S.G. § 2D1.1(b)(1) was

applicable. See Fed. R. Crim. P. 32(i)(3) (“At sentencing, the court . . . may accept any

undisputed portion of the presentence report as a finding of fact”).

                                      *      *      *

       Accordingly, we conclude that the district court did not clearly err in finding that

Mondragon possessed a firearm within the meaning of § 2D1.1(b)(1) and therefore affirm

the district court’s judgment.

                                                                              AFFIRMED




                                            11
