                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3324
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Willie Gonzalez

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 11, 2015
                                Filed: July 2, 2015
                                  [Unpublished]
                                  ____________

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

     Willie Gonzalez pleaded guilty to conspiring to possess with intent to distribute
500 grams or more of a mixture or substance containing methamphetamine in
violation of 21 U.S.C. § 846, and the district court1 sentenced him to 144 months’
imprisonment—a 24-month upward variance from the 120-month statutory mandatory
minimum sentence based on the quantity of methamphetamine involved. Gonzalez
appeals his sentence, and we affirm.

       Gonzalez was originally indicted on one count of possession with intent to
distribute methamphetamine and was taken into custody. Prior to trial, he was
released from custody subject to several special conditions, including that he remain
in Nebraska and that he refrain from possessing or using drugs or alcohol. Within
weeks, however, a pretrial services officer filed a petition in the district court seeking
a warrant for Gonzalez’s arrest. The petition alleged that Gonzalez had violated the
terms of his pretrial release by testing positive for methamphetamine on two occasions
and by failing to appear for mandatory substance-abuse treatment. A warrant was
issued, and two days later, Gonzalez was arrested in Iowa in possession of 15 grams
of pure methamphetamine. Gonzalez admitted to violating the conditions of his
pretrial release, and his release was revoked.

       Gonzalez was later charged in a superseding indictment with the original count
of possession with intent to distribute methamphetamine and an additional count of
conspiracy to distribute methamphetamine. Gonzalez pleaded guilty to the conspiracy
count without the benefit of a plea agreement, and a presentence investigation report
(PSR) was ordered. As relevant here, the PSR recommended a two-level increase to
Gonzalez’s base offense level under § 2D1.1(b)(1) of the United States Sentencing
Guidelines Manual (U.S.S.G. or Guidelines) for possession of a firearm in connection
with the conspiracy. Gonzalez objected to this recommendation.




      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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       At the sentencing hearing, the government presented testimony to support
application of the firearm enhancement. Two cooperating witnesses testified that
methamphetamine trafficking had occurred at a tavern owned by Gonzalez and that
Gonzalez was involved in the trafficking. An Omaha police detective testified that
after receiving a tip about drug trafficking at the tavern, officers obtained warrants to
search the tavern and Gonzalez’s residence. When the detective and other officers
executed the warrant at the tavern, Gonzalez and one other individual were present,
and Gonzalez was standing near the bar. Officers searched Gonzalez and found a
small amount of methamphetamine on his person, as well as a small amount of
methamphetamine and a digital scale elsewhere in the tavern. Officers recovered a
firearm from a trash can located near the bar where Gonzalez had been standing and
ammunition matching the firearm from behind the bar. They also recovered
ammunition matching the firearm during the search of Gonzalez’s residence.

       Based on this evidence, the district court concluded that Gonzalez possessed the
firearm in connection with the drug-trafficking conspiracy and that the § 2D1.1(b)(1)
firearm enhancement applied. Gonzalez’s advisory Guidelines sentencing range with
the firearm enhancement would have been 87 to 108 months, but because the amount
of methamphetamine attributed to Gonzalez triggered a higher 120-month statutory
mandatory minimum sentence under § 841(b)(1), the mandatory minimum sentence
became the Guidelines range. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required
minimum sentence is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline sentence.”). Application
of the § 2D1.1(b)(1) firearm enhancement also meant that Gonzalez was ineligible for
safety-valve relief from the 120-month statutory mandatory minimum sentence. See
id. § 5C1.2(a)(2) (imposing requirement to qualify for relief that “the defendant did
not . . . possess a firearm or other dangerous weapon . . . in connection with the
offense”). After considering the 18 U.S.C. § 3553(a) factors and taking into account
Gonzalez’s serious criminal conduct while on pretrial release, the district court
concluded that a 24-month upward variance from the 120-month mandatory minimum

                                          -3-
was appropriate and, as noted above, imposed a sentence of 144 months’
imprisonment.

        Although it does not develop the issue, Gonzalez’s brief appears to argue that
the district court erred by finding that the firearm was connected to the conspiracy and
by applying § 2D1.1(b)(1). We review for clear error a district court’s factual finding
that a defendant possessed a firearm for purposes of a § 2D1.1(b)(1) firearm
enhancement. See United States v. Atkins, 250 F.3d 1203, 1213 (8th Cir. 2001). The
enhancement applies “if the [firearm] was present, unless it is clearly improbable that
the [firearm] was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11. In other
words, the government must establish “that the firearm was present and was probably
connected to the drug charge.” United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.
2005). Proof of “a temporal and spatial nexus” among the firearm, the defendant, and
the drug-trafficking activity is sufficient. Id.

      Based upon the earlier-described testimony presented at the sentencing hearing,
we conclude that the district court did not clearly err in finding that Gonzalez
possessed the firearm in connection with the conspiracy to distribute
methamphetamine and that the court properly applied the § 2D1.1(b)(1) firearm
enhancement.2


      2
        Gonzalez’s Guidelines sentencing range was 87 to 100 months with the firearm
enhancement and 70 to 87 months without the enhancement. In either event, because
the 120-month statutory mandatory minimum was greater, the 120-month mandatory
minimum became the advisory Guidelines sentence. The question whether the firearm
enhancement applied remains relevant, however, because it renders Gonzalez
ineligible for § 5C1.2(a) relief from the 120-month mandatory minimum sentence.
See United States v. Muniz Ochoa, 643 F.3d 1153, 1157-58 (8th Cir. 2011)
(concluding that because evidence was sufficient to support application of the
§ 2D1.1(b)(1) firearm enhancement, safety-valve relief under § 5C1.2(a) was
unavailable).


                                          -4-
       Gonzalez next argues that his sentence is substantively unreasonable. We
review a defendant’s sentence—whether it is inside or outside the Guidelines
range—under a “deferential abuse-of-discretion standard.” Gall v. United States, 552
U.S. 38, 41 (2007). “A district court abuses its discretion ‘when it fails to consider
a relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.’” United States v. Strong, 773 F.3d 920, 926 (8th Cir. 2014)
(quoting United States v. Robison, 759 F.3d 947, 950-51 (8th Cir. 2014)), cert. denied,
135 S. Ct. 1872 (2015). In calculating an appropriate sentence, a district court has
“substantial latitude” to weigh the § 3553(a) sentencing factors, United States v.
Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009), and “it will be the unusual case
when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable,” United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v.
Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

       After considering the § 3553(a) factors, the court determined that a 24-month
upward variance was appropriate in light of Gonzalez’s conduct while on pretrial
release. As noted above, after he was originally indicted, Gonzalez repeatedly
violated the terms of his pretrial release by possessing and using methamphetamine,
by failing to appear for substance-abuse treatment, and by leaving the state of
Nebraska. When Gonzalez was eventually arrested in Iowa, he was in possession of
15 grams of pure methamphetamine. Given the fact that Gonzalez’s pretrial-release
violations, like the offenses charged in the indictment, involved methamphetamine,
the district court could properly conclude that Gonzalez posed a substantial risk of
recidivism and that an upward variance was warranted. The district court did not
abuse its substantial discretion in weighing the § 3553(a) factors, and the resulting
sentence is not substantively unreasonable.

      The judgment is affirmed.
                      ______________________________


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