                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-5009


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PEDRO GOMEZ-JIMENEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:11-cr-00375-D-3)


Submitted:   September 26, 2013           Decided:   November 12, 2013


Before NIEMEYER and     GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Pedro         Gomez-Jimenez           (“Pedro”)      pled        guilty      to

conspiracy to distribute and possess with intent to distribute

280 grams or more of cocaine base and five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846 (2006), and aiding and

abetting the possession with intent to distribute 280 grams or

more of cocaine base and five kilograms or more of cocaine, in

violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1)

(West 2006 & Supp. 2013).            The district court calculated Pedro’s

Guidelines range at 168 to 210 months’ imprisonment, enhancing

his base offense level for possession of a firearm and use of a

minor,       U.S.         Sentencing         Guidelines          Manual            (“USSG”)

§§ 2D1.1(b)(1), 3B1.4 (2009 & Supp. 2010), and sentenced Pedro

to      concurrent         terms       of         180      months’       imprisonment.

Pedro challenges this sentence on appeal.                   We affirm.

            We review Pedro’s sentence for reasonableness “under a

deferential       abuse-of-discretion             standard.”          Gall    v.     United

States,    552    U.S.     38,   41,    51       (2007).       This    review       entails

appellate consideration of both the procedural and substantive

reasonableness of the sentence.                    Id. at 51.          In determining

procedural       reasonableness,        we   consider       whether      the       district

court    properly    calculated        the   defendant’s        advisory       Guidelines

range,    gave      the    parties     an        opportunity     to    argue       for   an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006)

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factors, selected a sentence based on clearly erroneous facts,

and sufficiently explained the selected sentence.          Id. at 49–51.

If the sentence is free of “significant procedural error,” we

review it for substantive reasonableness, “tak[ing] into account

the totality of the circumstances.”       Id. at 51.

          Pedro   argues     that   the    district    court    erred   in

enhancing his offense level under USSG § 2D1.1(b)(1).               Under

USSG   § 2D1.1(b)(1),    a   two-level    increase    in   a   defendant’s

offense level is warranted “[i]f a dangerous weapon (including a

firearm) was possessed.”       The enhancement is proper when the

weapon at issue “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. Manigan, 592 F.3d

621, 628-29 (4th Cir. 2010) (internal quotation marks omitted),

even in the absence of “proof of precisely concurrent acts, for

example, gun in hand while in the act of storing drugs, drugs in

hand while in the act of retrieving a gun.”            United States v.

Harris, 128 F.3d 850, 852 (4th Cir. 1997) (internal quotation

marks omitted).    “Rather, proof of constructive possession of

the [firearm] is sufficient, and the Government is entitled to

rely on circumstantial evidence to carry its burden.”            Manigan,

592 F.3d at 629.        Further, we attribute weapons possessed by

co-conspirators to a defendant when “under the circumstances of

the case, it was fair to say that it was reasonably foreseeable

                                    3
to    defendant     that    his        co-participant         was    in    possession       of   a

firearm.”         United States v. Kimberlin, 18 F.3d 1156, 1159-60

(4th    Cir.      1994)     (internal          quotation          marks     and    alteration

omitted).         The     defendant          bears    the     burden      to   show    that      a

connection between his possession of a firearm and his narcotics

offense is “clearly improbable.”                     Harris, 128 F.3d at 852-53.

                We conclude after review of the parties’ briefs and

the record that Pedro has not met this burden.                                 The district

court’s     application          of    the    two-level          enhancement       under    USSG

§ 2D1.1(b)(1) is supported by statements adduced at the guilty

plea hearing and in the presentence report supporting a finding

that    Pedro       could       foresee        his     co-defendant’s             constructive

possession        of    three         firearms        in     a    residence        where     the

participants       in     the    conspiracy          stored      cocaine    and     marijuana,

large amounts of United States currency, and paraphernalia used

for transporting, storing, and measuring drugs and converting

cocaine into cocaine base.                   At sentencing, Pedro did not point

to    any   evidence       suggesting         that     the       connection       between    the

firearms and his narcotics offenses was “clearly improbable,”

and this failing continues on appeal.

                Next,      Pedro         challenges           the      district       court’s

application of the two-level enhancement under USSG § 3B1.4 for

use    of   a    minor.         This    section       of    the     Guidelines      directs      a

district court to increase a defendant’s offense level by two

                                                4
levels if the defendant “used or attempted to use a person less

than        eighteen        years      of      age          to     commit          the     offense.”

USSG § 3B1.4.          “‘Used or attempted to use’ includes directing,

commanding,         encouraging,          intimidating,                counseling,         training,

procuring,         recruiting,          or     soliciting.”                   Id.,        cmt.     n.1.

The district         court’s      application            of      the    two-level        enhancement

under       USSG   § 3B1.4       is    supported            by    information        in    both    the

presentence         report       and   the     Government’s              evidentiary         proffer

establishing that Pedro directed the sixteen-year-old son of a

co-defendant          to     assist          him       in        producing         cocaine        base.

See United         States    v.     Murphy,        254      F.3d       511,   513-14      (4th     Cir.

2001)       (affirming       application           of       enhancement        where       defendant

directed the minor to “hold [a] gun on” carjacking victim). 1

                 Next, Pedro argues that the district court erred in

denying his motion for a downward departure or variance from the

Guidelines range based on law enforcement officials’ allegedly

improper use of force during his arrest.                                  However, a district

court’s refusal to depart from the applicable Guidelines range

does       not   provide     a    basis      for       appeal      under      18    U.S.C.       § 3742

(2006), “unless the court failed to understand its authority to


       1
       Pedro also argues that it was error for the district court
to apply the § 3B1.4 enhancement based on the late date of the
proffer, but he fails to explain why this is so or why the late
date warrants vacatur of his sentence.



                                                   5
do so.”           United States v. Brewer, 520 F.3d 367, 371 (4th Cir.

2008).            Pedro     does     not     suggest       that    the      district   court

misunderstood its authority to depart or vary downward from the

Guidelines range.            Accordingly, this claim is not reviewable.

                  Finally, Pedro argues that his 180-month sentence is

substantively            unreasonable.            A    within-Guidelines       sentence     is

presumed          on     appeal    to   be    substantively          reasonable,       United

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010),

and the presumption is rebutted only by a showing “that the

sentence      is        unreasonable       when       measured    against    the   § 3553(a)

factors.”              United States v. Montes-Pineda, 445 F.3d 375, 379

(4th       Cir.    2006)     (internal       quotation       marks    omitted).        Pedro

suggests that his sentence is substantively unreasonable because

it is greater than necessary to achieve the goals of sentencing. 2

We reject this argument as it essentially asks this court to

substitute its judgment for that of the district court and defer

to that court’s decision that a 180-month sentence achieved the

purposes          of    sentencing      in   Pedro’s       case.      United       States   v.

Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (“[D]istrict courts

       2
        In support of his contention that his sentence is
substantively unreasonable, Pedro also asserts it was error for
the district court to enhance his sentence “concerning the use
of a minor based on hearsay evidence” that the parties did not
have an opportunity to “rebut or explain.”      Pedro, however,
fails to explain how such an error would render his sentence
substantively unreasonable.



                                                  6
have extremely broad discretion when determining the weight to

be given each of the § 3553(a) factors.”).                 Pedro fails to rebut

the     presumption      that    his     within-Guidelines           sentence      is

substantively     reasonable.       Accordingly,       we    conclude       that   the

district court did not abuse its discretion in sentencing Pedro.

            We   therefore      affirm     the    judgment     of    the    district

court.     We dispense with oral argument because the facts and

legal    contentions     are    adequately       presented    in    the    materials

before   this    court   and    argument     would   not     aid    the    decisional

process.



                                                                             AFFIRMED




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