                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 29, 2016
                        UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                                                                      Clerk of Court
                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                   Plaintiff-Appellee,                      No. 15-2111
                                                              (D. N.M.)
              v.                                   (D.C. No. 1:13-CR-02642-JB-1)
 LUIS ANTHONY TOBANCHE,

                   Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit
Judges. **


          Luis Anthony Tobanche pleaded guilty in 2014 to being a felon in

possession of a firearm and agreed to removal from the United States. At

sentencing, Tobanche challenged the district court’s application of a four-level

enhancement under section 2K2.1(b)(6)(B) of the United States Sentencing

Guidelines for using or possessing a firearm in connection with another felony.



          *
         This order and judgment is not binding precedent except under the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.
          **
               Per the court’s March 10, 2016, Order, this case was submitted on the
briefs.
He argued there was insufficient evidence to tie him to any felony, and so the

enhancement could not be applied.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district

court’s sentence. The evidence plainly showed Tobanche had access to and

control of a car containing a firearm and methamphetamine.

                                I. Background

      Tobanche drove himself and two others to the Sandia Casino in

Albuquerque, New Mexico. Upon arrival, the three rummaged through the car for

sixteen minutes, and then began walking toward the casino elevators. At that

time, another car pulled into a spot nearby. Tobanche was walking toward the

second vehicle when someone inside the car shot Tobanche in the neck.

Tobanche ran to the elevators, pulled out a handgun, and pointed it at the second

vehicle. The vehicle sped off and the three men went into the casino elevator.

Casino surveillance showed Tobanche holding a silver handgun in his right hand,

which he then passed to one of his companions. Police were dispatched to the

casino and Tobanche was transported to a hospital.

      The police eventually retrieved the handgun from Tobanche’s companion.

Forensic examination showed that the gun’s trigger had been pulled, but that the

gun had failed to fire. The police then searched the car Tobanche had driven and

found a black glove in the open speaker cone of a large speaker that took up most

of the vehicle’s back seat. The glove contained a plastic bag with 105 grams of

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pure methamphetamine. The search also uncovered a shotgun under the car’s

hood, as well as a pistol in the trunk. An examination revealed Tobanche’s palm

print on the shotgun. Tobanche was then arrested for being a felon in possession

of a firearm.

      Although originally charged with both being a felon in possession and

illegal reentry after deportation, the government dropped the latter charge after

Tobanche agreed to plead guilty to the firearm charge. In the Presentence Report,

“(PSR)” the United States Probation Office suggested a four-level enhancement

because Tobanche possessed a firearm in connection with another felony.

Tobanche objected to the enhancement, arguing there was no evidence that any

criminal activity was taking place, and that even if a crime was occurring, there

was no evidence that Tobanche was involved.

      The government responded that (1) as the driver, Tobanche, was aware of

the contents of the vehicle, (2) Tobanche was seen rummaging through the trunk

of the car, and (3) there was sufficient evidence that the large amount of

drugs—105 grams of methamphetamine—constituted a per se trafficking amount.

      The district court overruled Tobanche’s objection, holding that the

evidence supported a finding that Tobanche had committed a drug distribution

felony under federal law, as well as felony drug possession under New Mexico

law. The court applied the enhancement and sentenced Tobanche to 100 months’

imprisonment, a low-end sentence under the appropriate Guidelines range.

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                                   II. Analysis

      A. Standard of Review

      We review the procedural reasonableness of a sentence imposed by the

district court for abuse of discretion. See United States v. Halliday, 665 F.3d

1219, 1222 (10th Cir. 2011). We review the district court’s legal conclusions de

novo and its factual findings for clear error. See United States v. Gantt, 679 F.3d

1240, 1246 (10th Cir. 2012). In addition, we view the evidence in the light most

favorable to the district court’s determinations. See United States v. Walters, 269

F.3d 1207, 1214 (10th Cir. 2001). “An error of law is per se an abuse of

discretion.” United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011).

      B. Sentencing Guidelines § 2K2.1(b)(6)(B)

      The Guidelines provide a four-level enhancement if the defendant

possessed or used a firearm “in connection with another felony offense.” USSG

§ 2K2.1(b)(6)(B). Notes to the Guidelines state the enhancement applies “in the

case of a drug trafficking offense in which a firearm is found in close proximity

to drugs, drug-manufacturing materials, or drug paraphernalia . . . .” Id., cmt.

14(B)(ii). For all other felony offenses, the enhancement applies only if the

firearm “facilitated or had the potential of facilitating” the offense. Id., cmt.

14(A). For the enhancement to apply, the government must prove the above

factors by a preponderance of the evidence. See United States v. Gomez-

Arrellano, 5 F.3d 464, 466 (10th Cir. 1993).

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       C. The District Court Properly Applied the Enhancement

       The district court found the enhancement could be applied because

Tobanche possessed the firearm in connection with at least two other felonies:

(1) possession with intent to distribute a controlled substance, see 21 U.S.C.

§ 841(a); and (2) felony possession of methamphetamine, see NMSA § 30-31-

23E.

             1. Possession with Intent to Distribute

       Possession with intent to distribute more than fifty grams of

methamphetamine is a federal felony. See 21 U.S.C. § 841(a), (b)(1)(A)(viii).

The district court found the evidence supported a finding that Tobanche had been

involved with the commission of this felony for several reasons: the quantity of

the drugs found, Tobanche drove the car in which the drugs were found, the drugs

were easily accessible to Tobanche, surveillance video showed Tobanche

rummaging through the car for over fifteen minutes, and multiple weapons were

found in the car. In addition, the district court found the firearm had the potential

to facilitate the commission of a drug felony because Tobanche carried the

handgun—loaded and ready to use—in public while also in the possession of a

large amount of drugs.

       We agree that the evidence supported each of these findings, and that they

prove by a preponderance that Tobanche possessed a firearm in connection with

another felony. Our decision in United States v. Gambino-Zavala, 539 F.3d 1221

                                         -5-
(10th Cir. 2008), is instructive. There, police searched an apartment and

discovered multiple guns in different rooms and a large amount of heroin in the

kitchen. Although the defendant shared the apartment with others, we upheld the

application of the four-level enhancement because the “amount of drugs the

police recovered was substantial and the drugs were located in an area of the

apartment that a joint occupant would regularly access.” Id. at 1230. This

supported a finding that the defendant had committed a felony—possession with

intent to distribute a controlled substance. Possession of the drugs could be

inferred because the defendant had access to all the areas of the apartment. In

addition, intent to distribute could be found, in part, because the amount of drugs

found was too large for personal consumption.

      The facts here are substantially similar. Tobanche drove a vehicle in which

a large amount of methamphetamine was recovered. The drugs were found in an

area of the vehicle—the back seat—that an occupant would regularly access. And

Tobanche rummaged through the car for at least fifteen minutes while the drugs

were in the back seat, so he almost surely knew of their existence and location.

Other evidence further supports the application of the enhancement here.

Tobanche had been involved with other drug felonies in the past. See United

States v. Paneto, 661 F.3d 709, 716 (1st Cir. 2011) (upholding application of the

enhancement, in part, because defendant had prior felony drug conviction).




                                         -6-
      Tobanche argues that he possessed the gun for personal protection, not to

facilitate drug offenses. But we agree with the district court and other circuits

that motivations for possessing a firearm need not be mutually exclusive;

Tobanche could have possessed the gun both to protect himself and to facilitate

the commission of felonies. See United States v. Hardin, 248 F.3d 489, 498 (6th

Cir. 2001); see also United States v. Fuentes Torres, 529 F.3d 825, 826 (8th Cir.

2008). Taken together, the evidence in the PSR proved by a preponderance that

Tobanche had possessed a firearm in connection with a violation of § 841.

      Finally, the evidence also supported a finding that the firearm had the

potential to facilitate commission of the felony. We have held that possession of

a firearm may facilitate an offense “by emboldening the possessor to commit the

offense.” United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012). The

Justice decision is highly instructive. There, the defendant’s firearms were within

easy reach, and he had methamphetamine on his person. We found that “[a]

reasonable person could find that the firearms gave him a sense of security

emboldening him to venture from his home with drugs that someone might wish

to take from him by force.” Id. Tobanche’s firearm was on his person and the

drugs were within easy reach in the back seat. In addition, we agree with the

district court that a loaded gun—as opposed to an empty one—further supports a

finding that possession of a firearm “emboldened” a defendant to commit an

offense.

                                         -7-
      In short, all elements of the enhancement were supported by a

preponderance of the evidence, and the district court did not err in applying it to

Tobanche’s sentence.

             2. Felony Possession of Methamphetamine

      Our finding with respect to possession with intent to distribute alone

supports affirming the district court. Nonetheless, we address the court’s other

rationale for applying the enhancement: felony possession of methamphetamine

under New Mexico law. Having already found that possession of the firearm had

the potential to facilitate an offense, we analyze only whether the evidence

supported a finding that Tobanche committed this state felony.

      New Mexico law makes possession of any amount of methamphetamine a

felony. See NMSA § 30-31-23E. Three elements must be established to prove a

violation: (1) the defendant must possess methamphetamine, (2) the defendant

must know he possesses methamphetamine, and (3) the possession must occur in

New Mexico. See New Mexico Rules Ann., Uniform Jury Instruction 14-3102.

Our findings above largely control here.

      We have already determined that Tobanche, by driving a vehicle containing

drugs within easy reach, possessed the methamphetamine. See supra; Gambino-

Zavala, 539 F.3d at 1230. The evidence supports a finding that Tobanche knew

the drugs were methamphetamine because, among other reasons, he rummaged




                                           -8-
through the car—including the back seat—for over fifteen minutes, and had been

convicted of drug offenses in the past.

      Thus, the evidence supported a finding that Tobanche possessed a firearm

in connection with the commission of a felony under New Mexico law.

                                III. Conclusion

      We AFFIRM the district court’s application of the four-level enhancement.

                                                  ENTERED FOR THE COURT

                                                  Timothy M. Tymkovich
                                                  Chief Judge




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