                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0203n.06
                                                                                             FILED
                                            No. 09-1455
                                                                                        Apr 01, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
FRANCISCO CRUZ CABALLERO                           )   EASTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )



Before: MERRITT, GIBBONS, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Francisco Cruz Caballero

appeals the 136-month sentence imposed by the district court after he pled guilty to conspiracy to

possess heroin with intent to distribute in violation of 21 U.S.C. § 846; possession of heroin with

intent to distribute in violation of 21 U.S.C. § 841(a)(1); and being an illegal alien in possession of

a firearm in violation of 18 U.S.C. § 922(g)(5)(A). He argues that the district court failed to rule

upon his request for a minor role adjustment pursuant to the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”) § 3B1.2, in contravention of Rule 32 of the Federal Rules of Criminal

Procedure. He also argues that the district court committed plain error by imposing a two-level

enhancement to his offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for the possession of a firearm




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No. 09-1455
United States v. Caballero

in connection with a drug-trafficking offense. For the reasons that follow, we affirm the district

court’s sentencing decision.

                                                   I.

       On June 16, 2008, the Oakland Macomb County Interdiction Team (“OMIT”) was notified

by a confidential informant that three individuals—who were later identified as Francisco Cruz

Caballero, Jesus Sandoval, and Jesus Ivan Lopez Ramos—were staying at the Super Eight Motel in

Sterling Heights, Michigan, and were possibly trafficking narcotics from this location. Sandoval,

Caballero, and Ramos, who were all aliens residing illegally in the United States, had traveled to

Michigan from Atlanta, Georgia. At approximately 8 a.m. the same day, OMIT began surveillance

of the hotel area and identified two vehicles—a black Nissan Altima and a tan Honda Accord—with

Georgia license plates. A K-9 unit was summoned to the scene, performed an exterior search of the

vehicle, and alerted positively to the presence of narcotics on both vehicles.

       At approximately 1:30 p.m., OMIT officers observed three men exit the motel and enter the

Honda. After circling the motel, the Honda pulled alongside the Nissan, and Ramos exited the

vehicle, retrieved an unidentified object from the Nissan, and returned to the Honda. OMIT officers

continued mobile surveillance as the Honda departed the area and, after observing several traffic

violations, conducted a traffic stop, in which the driver, Sandoval, was placed under arrest for failing

to produce a driver’s license. The officers asked Caballero and Ramos to exit the vehicle, and the

K-9 unit performed a second exterior search, again alerting positively to the presence of narcotics.

The officers then searched the vehicle, finding an open duffel bag behind the driver’s seat that

contained two handguns—a Smith & Wesson .357 and a Taurus 9 mm—and various pictures of

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United States v. Caballero

Jesus Malverde, the “patron saint” of drug traffickers. Caballero and Ramos were subsequently

arrested for the possession of weapons without a concealed weapons permit. The three men

collectively possessed $777.00.

        Upon obtaining a search warrant, officers searched the room in which Caballero, Ramos and

Sandoval were staying and retrieved 1,007.3 grams (approximately 1 kilogram) of heroin and

$24,700 in United States currency. When questioned separately the next day, Caballero told the

officers that he was in Detroit to purchase a car, Ramos stated that they found the heroin and money

in a bush outside the motel, and Sandoval maintained that they found the heroin at the motel.

        After Caballero pled not guilty to an initial indictment on July 8, the government filed a

Superseding Indictment on October 15, charging him with the following offenses: (1) conspiracy to

possess heroin with intent to distribute, (2) possession of heroin with intent to distribute, (3) carrying

a firearm during and in relation to a drug trafficking crime, and (4) being an illegal alien in

possession of a firearm. Caballero again pled not guilty to all counts on October 17.

        Despite his initial pleas, Caballero entered a guilty plea to Counts 1, 2, and 4 of the

Superseding Indictment on December 1, at which point the government moved to dismiss Count 3

in the interests of justice. The judge apprised Caballero that Counts 1 and 2 each carried a minimum

sentence of 120 months’ imprisonment and a maximum sentence of life imprisonment and that

Count 4 carried a maximum sentence of 120 months’ imprisonment. Following the plea hearing,

the probation office prepared a Presentence Investigation Report (“PSR”) recommending a guideline

imprisonment range of 121–151 months based upon Caballero’s offense level of 32 and criminal

history. In particular, the PSR noted that Caballero had not filed any objections to the PSR within

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No. 09-1455
United States v. Caballero

the time limitations of Local Rule 32.1.1 Nevertheless, Caballero filed an untimely sentencing

memorandum on March 12, 2009, requesting the minimum 120-month sentence and seeking the

redaction of certain paragraphs in the PSR that described prior Arizona charges of kidnapping,

aggravated assault, and armed robbery that had been dismissed, as he feared such reference would

adversely affect his security classification within the Bureau of Prisons.

       At the sentencing hearing before United States District Judge Lawrence P. Zatkoff on March

31, defense counsel unsuccessfully reiterated the objection to the inclusion of the Arizona charges

and stated that Caballero had no additional objections to the PSR and no further requests to modify

its content. Judge Zatkoff then permitted counsel to speak on behalf of Caballero in mitigation and

“[a]s distinguished from the [PSR].” Defense counsel again requested that the court impose the

minimum 120-month sentence, particularly in light of the fact that co-defendant Sandoval had been

sentenced to the minimum. After defense counsel’s statement, Judge Zatkoff afforded Caballero an

opportunity to speak on his own behalf, at which point Caballero expressed regret for his crimes,

requested a second chance, and stated the following:

               I am illegal and the Government is going to pay a lot of money for
               people like me. That’s why I dare to say I don’t want to offend you,


1
 Local Rule 32.1(b) provides that, within 14 days of disclosure of the PSR, counsel for the defendant
“shall communicate to the probation officer . . . any objections to any material information,
sentencing classifications, sentencing guideline ranges, and policy statements which are contained
in, or omitted from, the report. Such communication shall be in writing and shall be signed by the
defendant or counsel for the defendant.” E.D.Mich. LR 32.1(b). The requirements of Local Rule
32.1(b) are identical to Federal Rule 32(f)(1), which provides that the parties, within 14 days after
receiving the PSR, “must state in writing any objections, including objections to material
information, sentencing guideline ranges, and policy statements contained in or omitted from the
report.” Fed. R. Crim. P. 32(f)(1).

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United States v. Caballero

               your Honor, but I want you to please consider giving me the least
               participant, the low participation or something.

Before imposing the sentence, Judge Zatkoff stated that he had reviewed the PSR, found the

Guidelines recommendation to be properly computed at a range of 121–151 months, and determined

that Caballero was not similarly situated to Sandoval, as Caballero faced an additional firearms

charge. He then sentenced Caballero to 136 months’ imprisonment for Counts 1 and 2 and to 120

months’ imprisonment for Count 4, with the sentences to run concurrently and to be followed by five

years of supervised release. Caballero appeals.

                                                  II.

       Caballero argues that the district court violated Rule 32 by failing to rule upon his request

for a minor role adjustment pursuant to U.S.S.G. § 3B1.2. He premises this claim upon his request

for “low participation” at the sentencing hearing, which he contends was clearly a request for a

minor role adjustment. Pursuant to Federal Rule of Criminal Procedure 32, the sentencing court

“must—for any disputed portion of the presentence report or other controverted matter—rule on the

dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing,

or because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). In

particular, Rule 32 “prohibits a court faced with a dispute over sentencing factors from adopting the

factual findings of the [PSR] without making factual determinations of its own.” United States v.

Lang, 333 F.3d 678, 681 (6th Cir. 2003) (internal quotations omitted). But, there is “‘no reason to

require a district court to make independent findings outside the PSR when the facts are

undisputed.’” Id. (quoting United States v. Treadway, 328 F.3d 878, 886 (6th Cir. 2003)).


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United States v. Caballero

       Under Rule 32(f), in order to dispute a finding in the PSR, a party must file written objections

within 14 days of receiving it, “including objections to material information, sentencing guideline

ranges, and policy statements contained in or omitted from the report.” Fed. R. Crim. P. 32(f)(1);

see also E.D.Mich. LR 32.1(b) (requiring parties to file objections to the PSR within 14 days after

receiving it). If, however, a party fails to make objections within this 14-day window, the court at

sentencing “may, for good cause, allow a party to make a new objection at any time before sentence

is imposed.” Fed. R. Crim. P. 32(i)(1)(D); see also E.D.Mich. LR 32.1(e) (permitting the court,

“upon a showing of good cause,” to allow new objections “to be raised at any time prior to the

imposition of sentence”).

       In this case, defense counsel did not object to the PSR based upon Caballero’s alleged

entitlement to a minor role adjustment. It is undisputed that defense counsel did not file any written

objections to the PSR within 14 days after receiving it on the grounds of a minor role adjustment,

as is required under Local Rule 32.1(b). Moreover, defense counsel made no untimely written or

oral objection on this basis. At sentencing, when Judge Zatkoff asked whether Caballero had any

objections, corrections, or deletions to the PSR, defense counsel affirmed that he had thoroughly

reviewed the PSR with Caballero, who wished only to dispute the inclusion of the Arizona charges.

Although Local Rule 32.1(e) permits the district court to allow belated objections upon a showing

of good cause, defense counsel never raised the issue of a minor role adjustment.

       Nevertheless, Caballero contends that his casual reference to “low participation” during his

allocution must be construed as a formal objection to the PSR. We disagree. Caballero neither cited

the minor role guideline under U.S.S.G. § 3B1.2 nor developed any meaningful argument regarding

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No. 09-1455
United States v. Caballero

this adjustment. See United States v. Martinez-Vargas, 321 F.3d 245, 248 n.4 (1st Cir. 2003)

(finding no timely objection to the PSR based on a minor role claim when the defendant “never

referred to the role-in-the-offense guideline” or “develop[ed] his ‘helper’ argument in any

meaningful way”). Therefore, his reference to “low participation” cannot be properly understood

as a belated objection to the PSR on the basis of a minor role adjustment, and the district court’s

obligations under Rule 32(i)(3)(B) were never triggered.

        Given his failure to raise the minor role adjustment objection in the district court, Caballero

is entitled only to plain error review in this court. See United States v. Ellerbee, 73 F.3d 105, 108

(6th Cir. 1996) (reviewing appellant’s claim only for plain error when he failed to argue it in the

district court). To prevail, he must show that an error occurred in the district court, the error was

plain, it affected his substantial rights, and “this adverse impact seriously affected the fairness,

integrity or public reputation of the judicial proceedings.” United States v. Blackwell, 459 F.3d 739,

771 (6th Cir. 2006) (internal quotations omitted). “The plain error doctrine mandates reversal only

in exceptional circumstances and only where the error is so plain that the trial judge and prosecutor

were derelict in countenancing it.” United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994)

(internal quotations omitted).

                                                   A.

        Caballero contends that he was entitled to a minor role adjustment under U.S.S.G. §

3B1.2(b), which provides that a defendant who “was a minor participant in any criminal activity”

is entitled to a mitigating role adjustment, resulting in a two-level decrease to his offense level under

the Guidelines. As defined by § 3B1.2, a minor participant is a defendant “who is less culpable than

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No. 09-1455
United States v. Caballero

most other participants, but whose role could not be described as minimal.” U.S.S.G. Manual §

3B1.2 cmt. n.5. The application notes emphasize that the minor role adjustment is a “heavily” fact-

based determination and that the district court, “in weighing the totality of the circumstances, is not

required to find, based solely on the defendant’s bare assertion, that such a role adjustment is

warranted.” Id. § 3B1.2 cmt. n.3(C). Indeed, the “determination of a defendant’s culpability is

heavily dependent upon the facts, and the defendant has the burden of proving mitigating factors by

a preponderance of the evidence.” United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002)

(internal quotations and citation omitted).

       This court has previously interpreted the applicability of a minor role adjustment in similar

factual scenarios. In Bartholomew, defendant Harris and two co-defendants were convicted by a jury

for conspiracy to distribute marijuana. Id. at 916. Additionally, Harris was convicted of possession

with intent to distribute marijuana. Id. Although Harris contended that the district court erred in

refusing his request for a minor or minimal role reduction pursuant to § 3B1.2, we affirmed the

district court, noting that Harris was not entitled to a minor or minimal role reduction because he

“was a fully integrated member of a substantial drug conspiracy that used his residence as a base of

operations” and had “participated in several drug transactions . . . stored a shotgun and ammunition

in the closet near the stairs to his basement, and personally received at least one large shipment of

marijuana.” Id. at 924–25; see also United States v. Kollar, 336 F. App’x 497, 502 (6th Cir.)

(finding that defendant was not entitled to a minor role reduction with respect to his conviction for

conspiracy to possess with intent to distribute cocaine since, “even though [he] may [have been] less

culpable than [his co-defendant], his role was indispensable because he aided in the cutting and

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United States v. Caballero

repackaging of the cocaine as well as arranging and carrying out drug deals”), cert. denied, 130 S.

Ct. 643 (2009); Ellerbee, 73 F.3d at 108 (finding that defendant was not entitled to a minor role

reduction in a mail fraud case when he “was the major, if not sole, participant in the fraud scheme”).

       Like the defendants in Bartholomew, Kollar, and Ellerbee, Caballero was not entitled to a

minor role adjustment for his participation in the heroin conspiracy and trafficking crimes because

his role was not minor within the meaning of § 3B1.2. On December 1, 2008, Caballero pled guilty

to three charges: conspiracy to possess with intent to distribute heroin; possession with intent to

distribute heroin; and being an illegal alien in possession of a firearm. During the plea colloquy,

Caballero admitted that he and his co-defendants had traveled from Atlanta to Detroit with heroin

and several handguns for the purpose of distributing heroin to a third party. Consistent with this

testimony, OMIT officers observed Caballero and his co-defendants depart the Super Eight Motel

together, and Caballero was present in the Honda when it was stopped. Despite his request for “low

participation,” Caballero has not provided any evidence suggesting that he played a minor role in the

offenses or was less culpable than his co-defendants. Therefore, he was not entitled to a minor role

adjustment under § 3B1.2.

                                                 B.

       Caballero also contends that the district court plainly erred in applying a two-level

enhancement to his sentence under U.S.S.G. § 2D1.1(b)(1) for the possession of firearms in

connection with a drug trafficking offense, as there was no evidence establishing a nexus between




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United States v. Caballero

the heroin and handguns.2 In response, the government maintains that the firearms need not be

seized from the same location as the narcotics to apply a firearms enhancement under § 2D1.1(b)(1).

We conclude that the district court did not plainly err in imposing the two-level sentencing

enhancement, as Caballero has failed to show that it is clearly improbable that the handguns were

connected to the heroin conspiracy and trafficking offenses.

       Section 2D1.1(b)(1) provides a two-level increase in a defendant’s offense level if a firearm

is “possessed” during a drug-trafficking crime. This enhancement “is proper only if the government

establishes, by a preponderance of the evidence, that (1) the defendant possessed a dangerous

weapon (2) during the commission of a drug-trafficking offense.” United States v. Moses, 289 F.3d

847, 850 (6th Cir. 2002). If the government proves both elements, “the weapon is presumed to have

been connected to the defendant’s offense.” Id. “The defendant can rebut this presumption only by

showing that it is ‘clearly improbable that the weapon was connected to the offense.’” Id. (quoting

U.S.S.G. Manual § 2D1.1 cmt. n.3). Here, the government met its burden of showing possession

because Caballero pled guilty to the firearms possession charge and admitted at the plea colloquy

that he and his co-defendants possessed a 9 mm semiautomatic pistol and a .357 Magnum revolver

while traveling from Atlanta, Georgia, to Detroit, Michigan, for the purpose of distributing heroin.

Caballero contends, however, that he satisfied his burden of showing clear improbability because

no nexus between the firearms and narcotics was established.




2
 Caballero acknowledges that he did not dispute the sentencing enhancement under § 2D1.1(b)(1)
in the district court and thus is limited to plain error review in this court.

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No. 09-1455
United States v. Caballero

       As to nexus, this court “considers various factors in reviewing the question of whether a

firearm was related to a particular drug offense, including the proximity of the firearm to the drugs,

the type of firearm involved, whether the firearm was loaded, and any alternative purpose offered

to explain the presence of the firearm.” Id. Caballero’s argument hinges principally on the first

factor, namely the proximity between the firearms and drugs. He contends that it is clearly

improbable that he possessed firearms during the commission of the narcotics offenses because the

firearms were recovered from the Honda at the time of Caballero’s arrest, while the heroin was later

recovered from the Super Eight motel room where Caballero and his co-defendants were staying.

       However, contrary to Caballero’s argument, this court in United States v. Tisdale advised that

the Guidelines do not require that the firearms be readily accessible to be connected with the drug

offense; rather, a defendant possesses a firearm during the commission of a drug offense if the

weapon could have facilitated the illegal transaction. 952 F.2d 934, 937 (6th Cir. 1992); see also

United States v. Stewart, 926 F.2d 899, 901–02 (9th Cir. 1991) (upholding a sentence enhancement

under § 2D1.1(b)(1) where defendant’s firearms were possessed fifteen miles from the location of

the drug transaction). In this case, Caballero admitted that he and his co-defendants had traveled

from Atlanta to Detroit for the purpose of trafficking heroin and that he knowingly possessed both

heroin and firearms. OMIT officers seized two handguns from the Honda, along with various

pictures of Jesus Malverde, and a K-9 unit positively alerted twice to the Honda, suggesting that

drugs had been in the vehicle. Moreover, Caballero pled guilty not only to heroin trafficking and

firearms possession charges but also to conspiracy to distribute heroin. Thus, although the firearms

and heroin were recovered separately, Caballero possessed the handguns during the commission of

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United States v. Caballero

the ongoing heroin conspiracy. Accordingly, it is not clearly improbable that the firearms were

possessed during the commission of the drug offenses.

       Regarding the remaining nexus factors, although the record does not indicate whether the

firearms were loaded, we have repeatedly recognized that a .357 Magnum revolver is a type of

firearm normally associated with drug trafficking. See United States v. Bailey, 394 F. App’x 233,

239 (6th Cir. 2010) (citing cases). In addition, Caballero has not provided “any alternative purpose

. . . to explain the presence of the firearm,” Moses, 289 F.3d at 850, and thus has not satisfied the

burden of demonstrating clear improbability. Consequently, the district court did not plainly err

when it imposed a two-level sentence enhancement pursuant to § 2D1.1(b)(1).

                                                III.

       For the foregoing reasons, we affirm the decision of the district court in all aspects.




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