16-2491
United States v. Vargas-Rodriguez

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 6th day of June, two thousand seventeen.

    PRESENT: AMALYA L. KEARSE,
             DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
                           Circuit Judges.

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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               16-2491

    RAMON VARGAS-RODRIGUEZ,
             Defendant-Appellant.
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    FOR APPELLANT:                        Thea Johnson, Federal Defenders
                                          of New York, New York, NY.

    FOR APPELLEE:                         Dina McLeod (Brian R. Blais, on
                                          the brief), for Joon H. Kim,
                                          Acting United States Attorney
                                          for the Southern District of New
                                          York, New York, NY.

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     Appeal from a judgment of the United States District
Court for the Southern District of New York (Gardephe, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Defendant Ramon Vargas-Rodriguez appeals from the
judgment of the United States District Court for the
Southern District of New York (Gardephe, J.), entered on his
plea to being a felon in possession of a firearm, sentencing
him principally to sixty months of imprisonment. Vargas-
Rodriguez does not challenge his conviction, but appeals a
four-level sentencing enhancement that the district court
applied after determining that Vargas-Rodriguez possessed a
gun “in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). The separate felony was possession of
marijuana with intent to distribute. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Sentences are reviewed for procedural and substantive
reasonableness; Vargas-Rodriguez asserts only procedural
unreasonableness. “A district court commits procedural
error where it . . . makes a mistake in its Guidelines
calculation, . . . or rests its sentence on a clearly
erroneous finding of fact.” United States v. Cavera, 550
F.3d 180, 190 (2d Cir. 2008) (in banc). “A finding is
clearly erroneous when . . . the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United
States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007) (quoting
United States v. Hazut, 140 F.3d 187, 190 (2d Cir. 1998)).
“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” United States v. Chalarca, 95 F.3d 239, 244 (2d
Cir. 1996) (quoting Anderson v. City of Bessemer City, 470
U.S. 564, 574 (1985)).

     After a felon-in-possession conviction, a four-level
sentencing enhancement may be applied if the defendant “used
or possessed any firearm . . . in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). That
requirement is met when the district court finds by a
preponderance of the evidence that “the firearm . . .
facilitated, or had the potential of facilitating, another
felony offense.” Id. cmt. n.14(A); United States v. Legros,

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529 F.3d 470, 474 (2d Cir. 2008).   The district court
applied the enhancement here.

     Vargas-Rodriguez challenges the district court’s
findings that Vargas-Rodriguez intended to distribute
marijuana (rather than consume it himself), and that the gun
was possessed in connection with marijuana distribution.

     The district court’s findings were supported by more
than enough evidence to survive clear error review. For
example:

    •    Vargas-Rodriguez was found with 220 grams of
         marijuana, enough to roll approximately 220
         joints, and there was little evidence in the
         record suggesting that Vargas-Rodriguez used
         marijuana himself.

    •    A government expert testified that the drug’s
         packaging (approximately half of a pound of
         marijuana in a gallon Ziploc bag) was consistent
         with wholesale distribution.

    •    The same expert testified that the marijuana was
         high-quality, and that 220 grams of it could be
         sold retail for more than $5,000, or wholesale for
         more than $2,000. As the district court observed,
         Vargas-Rodriguez and his girlfriend were
         unemployed and could “ill afford thousands of
         dollars of marijuana for personal use.” App’x at
         103.

    •    Vargas-Rodriguez possessed a loaded handgun in
         close proximity to a large amount of marijuana,
         and the government expert opined that marijuana
         traffickers “[v]ery frequently” carry guns. App’x
         at 40. Since firearms are “tool[s] of the
         narcotics trade,” United States v. Muniz, 60 F.3d
         65, 71 (2d Cir. 1995), the presence of the gun
         suggested that Vargas-Rodriguez intended to
         distribute the drugs and that the gun could
         facilitate the distribution. See U.S.S.G. § 2K2.1
         cmt. n.14(B) (stating that the enhancement applies
         “in the case of a drug trafficking offense in
         which a firearm is found in close proximity to
         drugs”).


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     The district court was justified in finding, based on a
combination of the above evidence, that Vargas-Rodriguez
intended to distribute the marijuana rather than consume it,
and that his weapon either facilitated or could have
facilitated the distribution. Although Vargas-Rodriguez
argues that some of the evidence is also consistent with
personal consumption, that is unavailing under clear error
review. So long as the district court’s findings were a
“permissible view[] of the evidence,” there was no clear
error. Chalarca, 95 F.3d at 244. The district court’s
findings were permissible, and, consequently, the sentencing
enhancement was appropriately applied.

     For the foregoing reasons, and finding no merit in
Vargas-Rodriguez’s other arguments, we hereby AFFIRM the
judgment of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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