                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2407
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Arturo Caballero, also known            *
as El Charro,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 20, 2005
                                Filed: August 25, 2005
                                 ___________

Before MURPHY, BYE, and SMITH Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Arturo Caballero was convicted by a jury of one count of conspiracy to
distribute a mixture or substance containing a detectable amount of methamphetamine
in an amount of 500 grams or more in violation of 21 U.S.C. §§ 841(a)(1)(A) and
846. The district court1 adopted the recommendations in the Presentence Investigation
Report (PSR) which calculated his total offense level at 42. Caballero was sentenced
to 360 months' imprisonment. For reversal, Caballero argues that the district court

      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
erred in admitting evidence of the firearms discovered in his home and at his office.
He also contends that the district court erred at sentencing. We affirm.

                                    I. Background
       Caballero was indicted by a federal grand jury of one count of conspiracy to
distribute a mixture or substance containing a detectable amount of methamphetamine
in an amount of 500 grams or more in violation of 21 U.S.C. §§ 841(a)(1) and 846
(class A felony). Later, a federal grand jury returned a superseding indictment
additionally charging Caballero with five counts of distribution of methamphetamine
also in violation of 21 U.S.C. § 841(a)(1).

       Agents of the government executed warrants at Caballero's home and T's Auto
Sales (T's), Caballero's place of business. Special Agent J.J. Brandau seized a .32
caliber handgun from a purse at Caballero's residence and a .22 caliber Smith and
Wesson rifle from an office at T's. At trial, Special Agent Brandau testified that he
seized the firearms from Caballero's residence and business. Caballero objected but
the district court admitted the evidence.

        Caballero was an organizer and leader of a methamphetamine sales and
distribution organization. At trial, several government witnesses provided proof of
Caballero's narcotics sales and the quantities involved. Jane Land testified that she
purchased methamphetamine from Daniel Salinas and Caballero. Land and Salinas
initially went to T's to purchase methamphetamine but had no success. Later, the two
met Caballero at a house on 14th Street in Kansas City, Kansas, where he sold them
approximately two and one-half pounds of methamphetamine. Land positively
identified Caballero from a photo array and identified him at trial. Salinas purchased
approximately twenty pounds of methamphetamine from Caballero on four occasions.
Salinas positively identified Caballero from a photo array and identified him at trial.




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        Joe Andrews testified that he purchased methamphetamine from Caballero in
increments of no less than two pounds at a time. Andrews testified that he purchased
approximately forty pounds of methamphetamine from Caballero. Andrews also
positively identified Caballero in court. Grant Cushman testified that he purchased
three ounces to several pounds of methamphetamine at a time from Caballero. He
indicated that he also purchased methamphetamine from Gabrielle Valle (a/k/a
Julian), who had a narcotics trafficking relationship with Caballero. In fact, Caballero
took Cushman to purchase methamphetamine from Valle. Cushman positively
identified Caballero in court. David F. Bunton, Jr., purchased methamphetamine from
Tino Salazar. Bunton met with Caballero and discussed the sale of methamphetamine
at T's. Caballero was upset with Salazar for stealing a customer and said he was going
to steal Bunton's business from Salazar. Caballero offered to beat Salazar's
methamphetamine price by $500 per pound. Bunton did not purchase
methamphetamine from Caballero, but told Salazar about his conversation with
Caballero.

       The jury returned a guilty verdict on count one of the superseding indictment.
The PSR attributed 31.75 kilograms of methamphetamine to Caballero and calculated
his base offense level at 38 pursuant to U.S.S.G. § 2D1.1. The PSR also
recommended enhancements for Caballero's role as a leader or organizer, pursuant
to U.S.S.G. § 3B1.1(a), and for his possession of a firearm in connection with a drug
conspiracy, pursuant to U.S.S.G. § 2D1.1(b)(1). Caballero objected to the base level
in the PSR as not being founded upon reliable evidence. At sentencing, Caballero
renewed his objection and also objected to the role and firearm enhancements.

                                    II. Discussion
                                A. Firearms Evidence
      We review a district court's admission of evidence for abuse of discretion.
United States v. Jordan, 260 F.3d 930, 934 (8th Cir. 2001). The district court
permitted testimony that two firearms were recovered from Caballero's residence and

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place of business and permitted the firearms to be admitted as exhibits. Caballero
objected on the grounds that: (1) the presence of the firearms was irrelevant to the
charge against him, but instead bolstered the government's argument that Caballero
was a dangerous drug dealer; and (2) even if relevant, its probative value was
outweighed by its prejudicial impact. Caballero contends that the district court abused
its discretion. We disagree.

       Evidence of firearms possession is admissible and relevant as "tools in the drug
trade" in circumstantially proving involvement in drug trafficking. United States v.
Dierling, 131 F.3d 722, 732 (8th Cir. 1997). "The presence of firearms, generally
considered a tool of the trade for drug dealers, is also evidence of intent to distribute."
United States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990). During trial, Caballero
cross-examined Special Agent Michael R. Oyler, asking him whether any weapons
were seized. Caballero's questions "opened the door" to the firearms issue. The
government subsequently "walked in" and introduced evidence of Caballero's
weapons as "tools of the trade" over Caballero's objection, which the district court
properly overruled. Significantly, the firearms were seized at the same time and place
as was evidence demonstrating Caballero's participation in methamphetamine
distribution. The introduction of the weapons was relevant under case law, Dierling,
131 F.3d at 732; Schubel, 912 F.2d at 956, and was not unfairly prejudicial. The
district court did not abuse its discretion.

                              B. Sentence Enhancement
       Caballero's second argument on appeal is that the district court improperly
enhanced his sentence in violation of his Sixth Amendment right to trial by jury
relying upon Blakely v. Washington, 542 U.S. 296 (2004). Specifically, he contends
the drug quantity contained in the PSR and used by the district court for sentencing
exceeds the 500 grams alleged in the charge and found by the jury. Caballero makes
this argument for the first time on appeal and we therefore review for plain error.
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). However, we first review

                                           -4-
the district court's application of the Sentencing Guidelines de novo, United States
v. Mashek, 406 F.3d 1012, 1016 (8th Cir. 2005), and we find no error.

       During sentencing, Ms. Barr, Caballero's attorney, stated "Judge, there is a
minor correction. What we are challenging is any quantities beyond the 500 grams
that were alleged in the charge and found by the verdict. We don't know which 500
grams, but they believe that at least that much." Caballero argues that there is a large
discrepancy between the jury verdict and the PSR regarding the assessed amount of
methamphetamine. Caballero contends that the jury verdict reflects a much smaller
assessment than does the PSR, but that the district court adopted the recommendation
in the PSR.

       Our review of the record reveals that the evidence before the jury supported the
quantity findings of the district court. The jury found Caballero guilty of conspiracy
to distribute methamphetamine in an amount of 500 grams or more. To prove
Caballero's drug quantity, the government was required to establish the amounts by
a preponderance of the evidence. United States v. Padilla-Pena, 129 F.3d 457, 468
(8th Cir. 1997). The government established that Caballero was responsible for more
than 500 grams of methamphetamine.

       U.S.S.G. § 2D1.1 provided the applicable sentencing provision for Caballero's
offense. Section 2D1.1 cross references § 1B1.3(a), which requires that "all
reasonably foreseeable acts and omissions [of others] taken in furtherance of the
conspiracy" must be considered when determining Caballero's drug quantity
attribution. United States v. Smith, 240 F.3d 732, 737 (8th Cir. 2001).

      Land, Salinas, Andrews, and Cushman all testified to large purchases of
methamphetamine from Caballero. The PSR was more specific as to amounts sold,
adding transactions with Carlos Bernal and Gabriel Valle. According to the PSR,
methamphetamine transactions between Caballero, Land, and Salinas resulted in the

                                          -5-
sale of 7.26 kilograms; transactions between Caballero and Bernal resulted in the sale
of .91 kilograms; transactions between Caballero and Cushman' resulted in the sale
of 2.72 kilograms; transactions between Caballero and Valle resulted in the sale of
2.72 kilograms; and transactions between Caballero and Andrews' resulted in the sale
of 18.14 kilograms. The record supports the district court's attribution of 31.75
kilograms of methamphetamine to Caballero based upon the evidence before the jury.
The district court therefore did not make factual findings in violation of Caballero's
Sixth Amendment rights.

         Lastly, Caballero argues that the district court erroneously adopted the PSR
recommendation that characterized him as a leader or organizer. The district court
sentenced Caballero as a leader or organizer of criminal activity involving five or
more participants. U.S.S.G. § 3B1.1(a). Caballero made no Sixth Amendment
argument below as to the role enhancement. We therefore review for plain error. To
establish plain error, Caballero must show (1) error, (2) that is plain, and (3) that
affects substantial rights. Pirani, 406 F.3d at 550. If all three conditions are met, then
"an appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Id.

       Caballero can show that there was error and that it was plain under United
States v. Booker, 125 S. Ct. 738, 756–57 (2005) because the district court applied the
Guidelines as mandatory. Pirani at 550. However, given the factual record of this
case and the enhancements imposed, Caballero cannot show that the error affected his
substantial rights by demonstrating that there is a reasonable probability that he
would receive a more favorable sentence. Pirani, at 551. In our review of the record
there is nothing that indicates a more favorable sentence is reasonably probable at
resentencing. We therefore affirm the decision of the district court.




                                            -6-
BYE, Circuit Judge, concurring in part, dissenting in part.

       I concur the district court did not abuse its discretion by allowing the
government to introduce the firearms into evidence. However, because the record
indicates, at sentencing, the district court expressed its view of a mandatory
application of the guidelines would result in a disproportionate sentence for the
defendant, I believe a reasonable probability does exist Arturo Caballero would
receive a more favorable sentence under an advisory guideline regime. See United
States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005). I therefore would
vacate and remand for resentencing.
                      ______________________________




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