                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0556n.06

                                           No. 08-1120                                  FILED
                                                                                     Aug 11, 2009
                          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 WESTERN DISTRICT OF
ELOY OSUNA,                                             )    MICHIGAN
                                                        )
               Defendant-Appellant.                     )
                                                        )


Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

       PER CURIAM. Eloy Osuna appeals his sentence following his guilty plea and conviction

for conspiracy to possess with the intent to distribute and to distribute more than 5 kilograms of

cocaine and 1,000 kilograms of marijuana. The district court sentenced him to 240 months of

imprisonment. Osuna contends that the court erred in applying the two-level enhancement to his

sentencing guidelines base offense level for possession of a firearm. He further asserts the district

court violated the Sixth Amendment when it increased his base offense level based on judge-found

facts. We affirm Osuna’s sentence.

       The district court did not clearly err by increasing Osuna’s base offense level for possession

of a firearm pursuant to § 2D1.1(b)(1) of the Guidelines. In a conspiracy, the two-level firearm

enhancement is determined on the basis of “all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). It is appropriate
No. 08-1120


to apply the enhancement to the defendant if any member of the conspiracy actually or constructively

possessed a weapon during the commission of the offense and that member’s possession was

reasonably foreseeable by the other members of the conspiracy. See United States v. Catalan, 499

F.3d 604, 607 (6th Cir. 2007); United States v. Owusu, 199 F.3d 329, 347 (6th Cir. 2000). It is not

necessary that the defendant had actual knowledge of his coconspirator’s possession. The standard

is “whether a reasonable person would have foreseen that a gun would be present during the

commission of the offense.” Catalan, 499 F.3d at 607.

       Osuna argues that the district court committed clear error by imposing the firearm

enhancement because the presence of firearms at Humphry’s residence, the conspiracy headquarters,

was not reasonably foreseeable to him. He alleges that any evidence indicating he knew there were

firearms at Humphry’s house is presumptive and entirely circumstantial.

       Osuna’s arguments fail. First, most of his coconspirators confessed to their own knowledge

of the firearms inside the Humphry house, even those that spent much less time there than did Osuna.

Second, when the police searched the house after Humphry’s death, they found handguns in clear

view in the living room, kitchen, and bedroom, as well as large amounts of ammunition in these

rooms. An assault rifle was in the front closet. Third, Osuna admitted to acting as the doorman and

security guard for the headquarters while he stayed there. When a visitor came to the Humphry

house, the doorman or security guard would open the door with a handgun and allow the visitor

inside only after being patted down. Given Osuna’s role as the doorman/security guard and the

abundance of weapons in the house, the presence of firearms during the conspiracy was reasonably

foreseeable to Osuna.

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No. 08-1120


      The district court did not violate the Sixth Amendment by applying judge-found facts to

enhance Osuna’s base offense level. “District courts may, consistent with the Sixth Amendment,

find sentencing facts in applying the now-advisory sentencing guidelines.” United States v. Vonner,

516 F.3d 382, 384 (6th Cir. 2008) (en banc). This rule has been consistently reiterated in the Sixth

Circuit. See United States v. Conaster, 514 F.3d 508, 527 (6th Cir. 2008) (“[T]he increase in a

defendant’s sentence based on facts not admitted by the defendant or proven to a jury beyond a

reasonable doubt does not violate the Sixth Amendment.”). When the exact amount of drugs

involved is uncertain, as is the case here, a district court may estimate the amount using competent

evidence in the record for sentencing purposes. Owusu, 199 F.3d at 338.

       There was evidence in the record upon which the district court could rely indicating that

Osuna transported an additional 50 - 150 kilograms of cocaine over and above the amount Osuna

pled guilty to transporting. The government provided evidence from Mark Osuna, the defendant’s

brother and coconspirator, which detailed the transfer of the additional 50 - 150 kilograms of cocaine

from Texas to Michigan. Testimonial evidence from one coconspirator is “sufficient to determine

the amount of drugs for which another coconspirator should be held accountable.” Id. at 339.

Therefore, the district court did not violate the Sixth Amendment by applying judge-found facts

when determining Osuna’s appropriate base offense level under the advisory Guidelines.

       AFFIRMED.




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