                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                    U.S. COURT OF APPEALS
                              ________________________                ELEVENTH CIRCUIT
                                                                          JUNE 25, 2001
                                                                       THOMAS K. KAHN
                                     No. 99-4281                            CLERK
                              ________________________

                          D. C. Docket No. 97-06007-CR-FAM

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                            versus

JOEL G. AUDAIN, a.k.a. New Chief,
FERNANDO BURGOS-MARTINEZ, a.k.a. Fernando,
REGINALD MOLIN, a.k.a. Reggie,
LUCKNER GUILLAUME, a.k.a. Lucky,
MARC VALME, a.k.a. Palmiste, et al.,

                                                          Defendants-Appellants.

                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                   (June 25, 2001)


Before TJOFLAT, DUBINA and MESKILL*, Circuit Judges.
_____________________
       *Honorable Thomas J. Meskill, U.S. Circuit Judge for the Second Circuit, sitting by
designation.
PER CURIAM:

                                           I.

      Defendants/Appellants (the “Defendants”) Joel G. Audain (“Audain”),

Fernando Burgos-Martinez (“Burgos”), Reginald Molin (“Molin”), Luckner

Guillaume (“Guillaume”), and Marc Valme (“Valme”) appeal their convictions and

sentences for conspiracy to import cocaine and conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, and 963.

Molin, Guillaume, Audain, and Burgos appeal their convictions and sentences for

conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).

Molin and Guillaume appeal their convictions and sentences for possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Audain appeals

his conviction and sentence for substantive money laundering, in violation of 18

U.S.C. § 1957.

      After a lengthy trial, the Defendants were convicted on all charges filed

against them, and the district court sentenced the Defendants as follows: Audain,

life imprisonment; Burgos, life imprisonment; Valme, life imprisonment;

Guillaume, 235-month prison term; and Molin, 240-month prison term. The

Defendants then perfected their appeals.




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                                           II.

         The Defendants present the following issues for appellate review:

         1. Whether the conspiracy evidence proven at trial materially varied from

the indictment and, if so, whether the Defendants have established prejudice.

         2. Whether the evidence was sufficient to support the Defendants’

convictions.

         3. Whether the district court committed reversible error in admitting

wiretapped conversations involving Molin.

         4. Whether the district court committed reversible error in denying

Guillaume’s mistrial motion based upon one witness’s non-responsive answer.

         5. Whether the district court committed reversible error in allowing

questions on redirect examination concerning information about Burgos from a

witness’s manuscript.

         6. Whether the prosecutor’s closing remarks about Audain and Guillaume

constituted misconduct and, if so, whether either Defendant should receive a new

trial.

         7. Whether the district court erred in sentencing the Defendants.

                                           III.

         After reviewing the record, reading the parties’ briefs, and having the benefit


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of oral argument, we affirm all of the Defendants’ convictions and sentences,

except for the life sentences imposed upon Audain and Burgos for their

convictions under 18 U.S.C. § 1956(h). Title 18 U.S.C. § 1956 carries a maximum

sentence of 20 years imprisonment, and, therefore, as the government concedes,1

the district court erred in sentencing Audain and Burgos to life imprisonment for

violation of this statute. Accordingly, we must vacate that portion of their

sentences and remand the case for the district court to resentence Audain and

Burgos for their convictions under 18 U.S.C. § 1956(h).

      In all other respects, we summarily affirm the Defendants’ judgments of

conviction and sentences.2 We feel compelled, however, to briefly address

Audain’s argument concerning the firearm enhancement that the district court

imposed on him pursuant to U.S.S.G. § 2D1.1(b)(1).

                                              IV.

      Audain worked as an immigration inspector for the Immigration and

Naturalization Service (“INS”) at the Miami International Airport. Evens Gourgue

(“Gourgue”), a terminal operations specialist at Miami International Airport,

testified that he observed Audain assisting drug traffickers smuggle drugs into the


      1
          See Supplemental Brief For The United States, pg. 3, n.3.
      2
          See 11th Cir. R. 36-1.

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country. Gourgue stated that when he decided to act as a drug courier himself, he

asked Audain to assist him, and Audain agreed. After two separate drug runs from

Haiti to Miami, Gourgue testified that Audain met him at the jetway and escorted

him through the Miami airport in order to avoid Customs agents and agents of the

INS. Gourgue testified that Audain was in his INS uniform on both occasions, and

that he carried a firearm. Based on Gourge’s testimony, the district court imposed

a two level firearm enhancement on Audain’s offense level, pursuant to U.S.S.G. §

2D1.1(b)(1).

      Audain challenges the firearm enhancement by arguing that it was clearly

improbable that the firearm he carried was connected with Gourgue’s drug offense

because Gourgue’s testimony demonstrated that Audain’s possession of the firearm

was immaterial to Gourgue. We disagree.

      This court reviews the district court’s factual findings for clear error and its

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

Trujillo, 146 F.3d 838, 847 (11th Cir. 1998). Pursuant to U.S.S.G. § 2D1.1(b)(1),

if a defendant possessed a dangerous weapon during a drug-trafficking offense, his

offense level should be increased by two levels. The commentary to § 2D1.1

explains that this firearm enhancement “should be applied if the weapon was

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


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offense.” U.S.S.G. § 2D1.1, comment. (n.3) (1991). The government has the

burden under § 2D.1.1 to demonstrate the proximity of the firearm to the site of the

charged offense by a preponderance of the evidence. United States v. Hall, 46 F.3d

62, 63 (11th Cir. 1995). If the government is successful, the evidentiary burden

shifts to the defendant to demonstrate that a connection between the weapon and

the offense was “clearly improbable.” Id.

      In support of Audain’s firearm enhancement, the government relied on

Gourgue’s testimony to establish that Audain knowingly assisted in the

transportation of drugs while carrying a firearm. Significantly, Audain did not

attempt to discredit Gourgue’s testimony at the sentencing hearing. Thus, the

government fulfilled its burden of showing, by a preponderance of the evidence,

that Audain possessed a firearm during the drug-trafficking offense. Accordingly,

the burden shifted to Audain to prove that it was clearly improbable that the

firearm was connected to the offense. The district court found that Audain failed

to carry this burden, and Audain now challenges this finding on two general

grounds.

      First, Audain argues that there was no evidence that carrying the firearm

helped facilitate the transportation of drugs. Thus, Audain contends that his case is

distinguishable from the cases relied on by the government and the district court.


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However, Audain’s argument is without merit because he is essentially asserting

that the government must prove that the firearm was used to facilitate the

distribution of drugs, which is not required by either the plain language of § 2D1.1

or by our precedents. See Hall, 46 F.3d at 63 (11th Cir. 1995) (holding that the

government is only required to prove that the firearm was present during the drug-

trafficking offense); see also U.S. v. Hansley, 54 F.3d 709, 716 (11th Cir. 1995)

(holding the same); U.S. v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (holding

the same). Therefore, his argument fails.

      Second, Audain argues that his possession of the firearm was irrelevant to

the transportation of drugs, and, consequently, it was clearly improbable that the

firearm was connected to the drug offense. This argument, however, is not

supported by the record and does not comport with common sense. Gourgue

testified that as a novice courier he was nervous about transporting drugs and asked

Audain, an armed INS inspector, to meet him at the airport gate and escort him.

Given the undisputable fact that a personal escort by an armed INS agent greatly

increases the chances for successful drug trafficking, it is safe to assume that

Audain’s presence, which included the presence of his firearm, was very important

to Gourgue. See United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997)

(“Transporting drugs under the watchful eyes of armed INS agents [is] the ‘perfect


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cover’ for [a drug trafficking] organization.”) (emphasis added)). Therefore, we

cannot say that it is clearly improbable that Audain’s presence, which included the

presence of his firearm, was relevant to Gourgue’s offense.

      Moreover, in persuasive authority, the First Circuit in United States v. Ruiz,

905 F.2d 499 (1st Cir. 1990), addressed a firearm enhancement for a police officer

found assisting drug traffickers. In holding that the firearm enhancement was

properly imposed, the court reasoned that

      the weapon was closely linked to the very powers and office which
      appellant used to implement his felonious activities. The knowledge
      that Ruiz carried a gun quite probably instilled confidence in those
      who relied upon him for protection in exchange for drugs. . . . The
      fact that Ruiz was compelled to carry the gun by virtue of his
      employment was, of course, to be considered – but that fact alone
      does not make it ‘clearly improbable’ that the weapon was connected
      with the drug offense.

Id. at 508.

      Here, Gourgue testified that Audain was armed “at times” when he was in

uniform. This testimony indicates that Audain was not required to be armed on the

occasions that he escorted Gourgue through the Miami airport. Thus, it appears

that Audain exercised discretion in choosing to be armed on those occasions.

Although the discretion to carry a firearm on the job is neither required nor

determinative, Audain’s exercise of discretion lends considerable weight to the

district court’s finding that it was not clearly improbable that Audain’s carrying of

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his firearm was connected to Gourgue’s drug offense. See id.; see also Marmolejo,

106 F.3d at 1216 (holding that an INS agent was subject to the firearm

enhancement when he escorted drug couriers while carrying a gun, despite the

facts that he did not use the gun and that carrying a gun was a requirement of his

position).

      Based on the foregoing, we reject Audain’s arguments concerning the

firearm enhancement.

      In conclusion, we affirm all of the Defendants’ convictions and sentences,

except for the life sentences imposed upon Audain and Burgos for their

convictions under 18 U.S.C. § 1956(h). We vacate the sentences on those counts

and remand this case to the district court for resentencing.

      AFFIRMED in part, VACATED and REMANDED in part.




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