                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-10311         ELEVENTH CIRCUIT
                             Non-Argument Calendar      JANUARY 3, 2011
                           ________________________        JOHN LEY
                                                            CLERK
                   D.C. Docket No. 8:09-cr-00305-SDM-EAJ-2

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

GREGORY ALOUSIUS GOMES,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (January 3, 2011)

Before EDMONDSON, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Gregory Alousius Gomes appeals his 151-month sentence imposed after a

jury found him guilty of conspiracy to possess with intent to distribute 50 grams or
more of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

(b)(1)(A)(iii), and distribution and possession with intent to distribute 50 grams or

more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and

18 U.S.C. § 2. For the reasons set forth below, we affirm.

                                           I.

      Gomes challenges the district court’s application of the two-level

enhancement for possession of a firearm under § 2D1.1(b)(1). We review the

district court’s findings of fact for clear error and its application of the Sentencing

Guidelines to those facts de novo. United States v. Hall, 46 F.3d 62, 63 (11th Cir.

1995); see also United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006)

(“For sentencing purposes, possession of a firearm involves a factual finding,

which we review for clear error.”).

      Section 2D1.1(b)(1) of the Sentencing Guidelines provides that the offense

level for a drug offense is increased by two levels “[i]f a dangerous weapon

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

instruct the district court to apply the enhancement “if the weapon was present,

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

Id., cmt. n.3. We have held that the government has the initial burden to show by

a preponderance of the evidence that the firearm was present at the site of the

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charged conduct. See Hall, 46 F.3d at 63. If the government meets its burden, the

burden shifts to the defendant to prove that a connection between the weapon and

the offense is “clearly improbable.” Id. at 63–64.

      Gomes contends that the district court erred in applying § 2D1.1(b)(1)’s

two-level enhancement because the gun, an unloaded .38 caliber pistol, was

located in a container in his bedroom closet. He argues that the enhancement

should not have been applied because all the offense related conduct that occurred

at his home took place in his living room or outdoors. We disagree. The gun was

located in the same home where Gomes was selling drugs. A cell phone Gomes

used to arrange drug sales and crack cocaine was also found in his bedroom. See

United States v. Cooper, 111 F.3d 845, 847 (11th Cir. 1997) (stating that firearms

are “present” for purposes of § 2D1.1(b)(1) when they are “found where acts in

furtherance of the conspirac[y] [take] place”); Hall, 46 F.3d at 64 (concluding that

“presence of the weapon is all the Government need show”). The fact that the gun

was unloaded and found in a different room in Gomes’ home from where most of

the drug sales took place does not make it “clearly improbable,” see id. at 63, that

there was a connection between the gun and the drug offenses. The district court

did not clearly err in applying the enhancement.

                                         II.

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      Gomes also challenges the reasonableness of his 151-month sentence. “We

review sentencing decisions only for abuse of discretion, and we use a two-step

process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). First, we

“‘ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007)). If we conclude that no procedural error occurred, “the second step is to

review the sentence’s ‘substantive reasonableness’ under the totality of the

circumstances, including ‘the extent of any variance from the Guidelines range.’”

Id. (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597). “If the district court’s

sentence is within the guidelines range, we expect that the sentence is reasonable.”

United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010); see also

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do not

automatically presume a sentence within the guidelines range is reasonable, we

‘ordinarily . . . expect a sentence within the Guidelines range to be reasonable.’”

(quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).

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      As for procedural error, Gomes contends that the district court failed to

consider the § 3553(a) factors and treated the Guidelines as mandatory because the

court imposed a sentence that reflected the crack/powder cocaine disparity in the

Sentencing Guidelines. See Kimbrough v. United States, 552 U.S. 85, 109–11,

128 S. Ct. 558, 575 (2007) (holding that a district court does not abuse its

discretion by considering the Sentencing Guidelines’ disparate treatment of crack

and powder cocaine offenses when sentencing a defendant). After explaining that

Gomes’ advisory Guidelines range was 151 to 188 months imprisonment, the

district court gave Gomes an opportunity “to offer any matter in mitigation or any

matter under 3553(a) that [the court] should consider in arriving at a final and

reasonable sentence.” Before imposing its sentence, the court stated that it had

“considered the factors arrayed at 18 U.S.C. 3553(a)” and discussed several of

those factors on the record. See United States v. Scott, 426 F.3d 1324, 1330 (11th

Cir. 2005) (explaining that the district court’s acknowledgment that it had

considered the § 3553(a) factors “alone is sufficient in post-Booker sentences”).

Those statements make clear that the district court considered the § 3553(a)

factors. The court’s decision to impose a within Guidelines sentence does not

indicate that the court treated the Guidelines as mandatory. The court was

required to listen to Gomes’ argument regarding the disparate treatment of crack

                                          5
and powder cocaine, but the court was not required to reduce his sentence because

of it. See Kimbrough, 552 U.S. at 109–11, 128 S. Ct. at 575. No procedural error

occurred.

      Gomes also challenges the substantive reasonableness of his 151-month

sentence. He contends that his sentence is greater than necessary to achieve the

purposes of sentencing because he had no known criminal history and committed a

non-violent offense. Gomes also asserts that his sentence is substantively

unreasonable because his advisory Guidelines range would have been 41 to 51

months imprisonment if his offenses had involved powder cocaine and he was not

subject to a statutory mandatory minimum sentence of 120 months imprisonment.

Given the extensive harm caused by drug offenses, we cannot say that Gomes’

sentence, which was at the lowest end of his advisory Guidelines range, is

substantively unreasonable. See United States v. Irey, 612 F.3d 1160, 1190 (11th

Cir. 2010) (We may vacate a defendant’s sentence as substantively unreasonable

only if “we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” (quotation marks omitted)).

      AFFIRMED.

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