           Case: 16-11331   Date Filed: 01/26/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11331
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:15-cr-00025-RH-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                    versus

CHRISTOPHER ALAN PIERCE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (January 26, 2017)


Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
                Case: 16-11331        Date Filed: 01/26/2017       Page: 2 of 5


       Christopher Pierce appeals his 240-month sentence, imposed after pleading

guilty to conspiracy to possess with intent to distribute in excess of 500 grams of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Pierce

contends the district court applied an incorrect legal standard in imposing a two-

level enhancement to his sentence, pursuant to U.S.S.G. § 2D1.1(b)(1), for a co-

conspirator’s possession of a firearm, using the test announced in United States v.

Gallo, 195 F.3d 1278 (11th Cir. 1999). Specifically, Pierce asserts the standard set

forth in Gallo is invalid and outdated because it does not include new language

contained within commentary to the relevant conduct guideline, U.S.S.G.

§ 1B1.3(a)(1)(B). Pierce agues the new language requires the court to find the use

of firearms was within the scope of his conspiratorial agreement. After review, 1

we affirm.

      Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two-level

increase, “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.

§ 2D1.1(b)(1). Applying the firearm enhancement for a co-conspirator’s

possession requires the government to prove, by a preponderance of the evidence,

that: (1) the possessor was a co-conspirator, (2) the co-conspirator’s possession

was in furtherance of the conspiracy, (3) the defendant was a member of the

       1
            Pierce raises this specific objection based on Gallo for the first time on appeal.
Objections or arguments that are not raised before the district court are reviewed for plain error.
United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). This standard requires that there be
error, that the error is plain, and that the error affect a substantial right. Id.
                                                2
              Case: 16-11331      Date Filed: 01/26/2017    Page: 3 of 5


conspiracy at the time of possession, and (4) the co-conspirator’s possession was

foreseeable by the defendant. Gallo, 195 F.3d at 1284. If the government is

successful in meeting this initial burden, then the evidentiary burden shifts to the

defendant, who must demonstrate that a connection between the weapon and the

offense was “clearly improbable.” United States v. Stallings, 463 F.3d 1218, 1220

(11th Cir. 2006).

     The Guidelines provide that relevant conduct includes:

     (1)(A) All acts and omissions committed, aided, abetted, counseled,
     commanded, induced, procured, or willfully caused by the
     defendant; and

         (B) in the case of a jointly undertaken criminal activity . . . , all
         acts and omissions of the others that were—

             (i)     within the scope of the jointly undertaken criminal
                     activity;

             (ii)    in furtherance of that criminal activity, and

             (iii)   reasonably foreseeable in connection with that
                     criminal activity;

         that occurred during the commission of the offense of conviction,
         in preparation for that offense, or in the course of attempting to
         avoid detection or responsibility for that offense.

U.S.S.G. § 1B1.3. Application Note 3 to the relevant conduct guideline

commentary provides that in the case of a jointly undertaken criminal activity, the

conduct of others that meets all three of the above criteria is relevant conduct. Id.,

comment. (n.3(A)). The application note states the scope of a jointly undertaken
                                           3
              Case: 16-11331     Date Filed: 01/26/2017    Page: 4 of 5


criminal activity is not necessarily the same as the scope of the entire conspiracy,

and thus relevant conduct is not necessarily the same for every participant. Id.,

comment. (n.3(B)). To determine the defendant’s accountability for the conduct of

others under (a)(1)(B), the court must first determine the scope of the criminal

activity the particular defendant agreed to jointly undertake. Id. The court may

consider any implicit or explicit agreement fairly inferred from the conduct of all

participants, and acts that were not within the scope of the defendant’s agreement,

even if they were known or reasonably foreseeable to the defendant, are not

relevant conduct under (a)(1)(B). Id.

      Pierce’s argument that Gallo is an invalid and outdated test is without merit,

as Gallo has not been overruled and remains controlling authority. See, e.g.,

United States v. Barner, 572 F.3d 1239, 1252-53 (11th Cir. 2009) (utilizing the

Gallo test to uphold an enhancement under § 2D1.1(b)(1) when the defendant was

not present at armed robbery). In addition, although Pierce failed to object during

the sentencing hearing to Gallo’s alleged deficiency in failing to require the court

to first delineate the scope of the participant’s agreement, the district court made

formal factual findings concerning the scope of Pierce’s conspiratorial agreement

before announcing its sentence. The court found that Pierce was an active

participant in the conspiracy at the time the firearms were found, playing a

substantial role in the drug trafficking organization with more culpability than


                                           4
                Case: 16-11331       Date Filed: 01/26/2017       Page: 5 of 5


other co-conspirators. Because the conspiracy was extensive and the amounts of

drugs were large, the court found that it was foreseeable to Pierce, who was living

in the same apartment where the firearms were located, that the use of firearms

would be within the scope of the agreement. The application note to the

commentary permits the court to make reasonable inferences regarding foreseeable

actions between co-conspirators, and the court did not plainly err in finding that the

enhancement was proper. See U.S.S.G. § 1B1.3, comment. (n.4(C)(ii)) (co-

conspirators selling fraudulent stocks are each accountable for the amount obtained

by his accomplice because the conduct of each participant was reasonably

foreseeable).

       Pierce has failed to show that the district court plainly erred by imposing an

enhancement pursuant to § 2D.1(b)(1). 2 Accordingly, we affirm.

       AFFIRMED.




       2
          Moreover, even if the court committed an error, Pierce has failed to show that a
substantial right was affected because his guideline range would have remained the same
regardless of whether he received an enhancement pursuant to § 2D1.1(b)(1). See United States
v. Rice, 43 F.3d 601, 608 n.12 (11th Cir. 1995) (declining to discuss whether the court erred in
including a drug quantity enhancement because the sentence would remain the same). If Pierce
did not receive the firearm enhancement, his adjusted offense level would have been 35.
Because Pierce was enhanced as a career offender, however, his offense level still would have
been 37, pursuant to the table in § 4B1.1.
                                                5
