                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              April 29, 2011
                                   TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                            No. 10-1030
                                                               (D. Colo.)
OSCAR GARCIA-RUIZ,                                (D.C. No. 1:07-CR-00188-WDM-17)

       Defendant - Appellant.




                               ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Oscar Garcia-Ruiz appeals from his conviction and sentence for his participation

in a conspiracy to possess and distribute cocaine. He complains about a jury instruction

and evidentiary rulings. Because his arguments are unavailing we affirm his conviction.

He also alleges the district court erred in determining the drug quantity used to establish

the guideline sentencing range and erroneously applied a two-level enhancement for his

       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
possession of a firearm in connection with a drug offense. We see no error in firearm

enhancement but cannot find evidence of record supporting the drug quantity necessary

for the guideline employed (150 kilograms). Nevertheless the quantity error may well be

harmless as the district judge varied from the guidelines and the sentence ultimately

imposed is less than the guidelines would recommend for the drug quantity actually

revealed by the record. As we cannot determine whether the sentence would be different

had the proper quantity been contemplated we must remand for resentencing.

                        I.        FACTUAL BACKGROUND

       “Mike,” a Mexico citizen located in Juarez, was the primary supplier of an

extensive cocaine distribution conspiracy. (R. Vol. 2 at 201-202.) Mike employed

several people to transport the cocaine from El Paso, Texas, to the Denver, Colorado

area. In October, 2006, shipments ranging from 25-30 kilograms were delivered

approximately every other week.

       The recipients were members of a group headed by brothers Luis and Alejandro

Camacho-Levario (the Camacho Group) and their partner, Jose Muñoz. The Camacho

Group and Muñoz split the deliveries from Mike evenly. Alejandro primarily ran the

distribution business while Luis kept the books. Around November 2006, an ongoing

investigation led law enforcement officers to become aware of the Camacho Group and

discovered it had been selling drugs for period of years. Pursuant to a warrant, federal

agents began taping telephone calls from various numbers belonging to members of the

Camacho Group in late November 2006. Garcia-Ruiz was identified as a “runner” for

Alejandro. He made drug deliveries and collected money for the organization beginning

                                           -2-
in October 2006. On January 8, 2007, a shipment of cocaine from Mexico on its way to

Denver was confiscated by New Mexico police. Two days later, Alejandro was arrested

for violating his parole and was incarcerated in the county jail until April 2007. After

Alejandro’s arrest, Luis called Garcia-Ruiz seeking his assistance in collecting money

owed to the Group from previous distributions. Following the confiscation of Mike’s

shipment, cocaine became scarce. Mike sent no further shipments (because his supply to

quality cocaine was cut off) and the Camacho Group was unable to find another supplier

able to provide large quantities.

         On April 26, 2007, the law enforcement investigation culminated in an area-wide

“take-down,” requiring the assistance of several hundred officers.1 (Id. at 607.)

Numerous arrest and search warrants were issued and executed. Luis, Alejandro, Garcia-

Ruiz and many others were arrested. Search Team No. 11 was assigned to search Garcia-

Ruiz’s apartment. Christopher Amon, an agent for the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF), testified to recovering a purse which contained a .380

semiautomatic revolver from underneath the kitchen sink in Garcia-Ruiz’s apartment.

                         II.      PROCEDURAL BACKGROUND

         Seventeen members of the Camacho Group were charged with drug possession,

distribution and conspiracy charges in a 29-Count indictment. Garcia-Ruiz was tried on:

conspiracy to distribute and possess with intent to distribute 5 kilograms or more of

cocaine (Count 2); the December 7, 2006 distribution and possession with intent to


         1
             The take-down resulted in charges against eighty persons involved in the drug
trade.

                                               -3-
distribute more than 500 grams but less than 5 Kilograms of cocaine (Count 15); the

December 13, 2006 distribution and possession with intent to distribute more than 500

grams but less than 5 kilograms of a Schedule II substance and aiding or abetting the

same (Count 17); the January 28, 2007 distribution of more than 500 grams but less than

5 kilograms of cocaine (Count 24); and possession of a firearm and ammunition which

had been transported in interstate and foreign commerce while being an alien unlawfully

in the United States (Count 26).

       By the time of trial, all but two defendants, Garcia-Ruiz and Roberto Lopez, had

pled guilty or agreed to cooperate with the government. The evidence at trial consisted of

testimony from several co-conspirators, law enforcement officers and the tapes from the

recorded telephone conversations. The jury found Garcia-Ruiz guilty on all counts and

entered special verdicts finding the drug quantities as charged (more than 5 kilograms in

the conspiracy charge and, in the individual possession charges, more than 500 grams but

less than 5 kilograms) in each count.2 Eventually, Count 15 was dismissed.

       The presentence report calculated Garcia-Ruiz’s offense level as 38 based, in part,

on a drug quantity of greater than 150 kilograms (the amount considered solely for

sentencing purposes as opposed to the 5 kilograms considered in the guilt stage) and a

criminal history category of III, resulting in a guideline range of imprisonment for 360

months to life. The sentence also included, over Garcia-Ruiz’s objection, a two-level

enhancement for the firearm found during the search of his apartment. Garcia-Ruiz also



       2
           The jury found Lopez guilty on three counts but not guilty on one count.

                                             -4-
objected to the 150 kilogram drug quantity. He argued his involvement in the conspiracy

was limited to November through January, when the drug trafficking all but ended due to

the government’s seizure of the shipment on January 8, 2007. Therefore, he claimed, the

evidence established he should be held responsible for no more than 100 kilograms. He

also argued the sentences given to others in the organization in a similar role were much

lower – less than ten years – so a variance below the Guidelines would avoid sentencing

disparity. He requested a sentence of imprisonment of no more than ten years. At his

sentencing hearing, Garcia-Ruiz testified about his failure to cooperate with the

government prior to trial explaining his failure was only because his immediate family

still lives in Mexico and he feared retaliation against them if he cooperated.

       Pointing to Garcia-Ruiz’s involvement in the conspiracy for a period of six months

– from October 2006 through April 2007 – the government argued testimony established

there were shipments from Mexico of 25 to 30 kilograms every other week. In addition,

after the shipments were discontinued from Mexico, Garcia-Ruiz actively collected debts

for the conspiracy and assisted in attempts to find an alternative supplier. Thus, the

evidence supported an estimate (for sentencing purposes) holding Garcia-Ruiz

responsible for 150 to175 kilograms moved by the conspiracy during his involvement.

       The court overruled Garcia-Ruiz’s objection to the drug quantity concluding the

jury was given sufficient evidence to find Garcia-Ruiz was involved in a conspiracy

distributing more than 150 kilograms of drugs and his involvement was not insignificant.

The court also overruled his objection to the two-level gun-based enhancement because

evidence demonstrated there was a sufficient relationship between the location of the gun

                                            -5-
and his going to and from the apartment during drug transactions.

       The court stated:

       I am presented with a situation where the leader faces 180 months. The
       government seeks twice the amount of that. The probation officer, without
       specific recommendation, believes that the Guideline sentence should be
       moderated with a variant sentence under the statute. And I agree. And how
       does one measure that in a fair way and come up with a sentence that is
       sufficient but not greater than necessary.

       I do take into account the reality of cooperation, including, as [the]
       government argues, that others perhaps [may be] threatened as well,
       although I agree with this defendant that specific locale is an obvious threat
       to this defendant and his family. But in any case, there is that to be taken
       into account.

       I feel that the highest sentence that’s been given to someone so far is 194
       months. The involvement of that individual, although he cooperated, was
       again, much more extensive than this defendant. He was an organizer. He
       was involved with a gun. He purchased and sold large amounts of cocaine .
       . . . And I conclude that a sentence for this defendant that is essentially the
       equivalent of what the government feels is a maximum sentence for the
       kingpins sufficiently takes into account his lack of cooperation and I will
       conclude with a sentence of 180 months for this defendant.

(Supp. Vol. 2 at 26-27.)

       In this appeal Garcia-Ruiz claims the district court erred at trial by: (1) improperly

responding to a jury question concerning the amount of drugs he conspired to distribute

as a part of the conspiracy; and (2) by allowing testimony of a drug deal not charged in

the indictment. He claims the court erred at sentencing by: (1) assessing him responsible

for the distribution of over 150 kilograms of drugs; and (2) applying the two-level

enhancement for possession of a firearm in connection with his drug offense.




                                            -6-
                               III.       DISCUSSION

A.     Response to Jury Question

       Garcia-Ruiz maintains the district court improperly instructed the jury regarding

the special verdict form finding him guilty of conspiring to distribute more than 5

kilograms of cocaine. “The question of whether the jury was properly instructed on the

law is a legal question reviewed de novo.” United States v. Urbano, 563 F.3d 1150, 1154

(10th Cir.), cert. denied, 130 S. Ct. 434 (2009). “We reverse only in those cases where

we have a substantial doubt whether the jury was fairly guided in its deliberations.”

Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir. 2009) (quotations omitted).

       The verdict form, designated “Special Verdict as to Count Two,” stated in part:

       If you find the defendant guilty of Count Two, please answer the following
       questions (your answers must be unanimous):

       1. Do you find that the government proved beyond a reasonable doubt that
       the defendant, OSCAR GARCIA-RUIZ, conspired to distribute or possess
       with intent to distribute 5 kilograms or more of a mixture or substance
       containing a detectable amount of cocaine?

              ____ Yes

              ____ No

(R. Vol. 1 at 1303.)

After the jury began deliberations, it sent a note to the district court asking the following

question:

       As to the special verdict regarding Count 2, defendant OSCAR GARCIA-
       RUIZ: does the phrase “. . . conspired to distribute or possess with intent to
       distribute . . .” refer to the alleged conspiracy as a whole; the sum total of
       Oscar Garcia-Ruiz’s involvement; or the maximum amount of cocaine
       Oscar Garcia-Ruiz distributed or possessed with intent to distribute on any
       one occasion?

                                             -7-
(R. Vol. 1 at 1299.) Over Garcia-Ruiz’s objection, the court responded: “Members of the

Jury: The special verdict forms as to Count Two refer to the conspiracy as a whole.” (R.

Vol. 1 at 1300).

       “[A]n individual cannot be held criminally liable for substantive offenses

committed by members of the conspiracy before that individual had joined or after he had

withdrawn from the conspiracy . . . .” Glazerman v. United States, 421 F.2d 547 (10th

Cir. 1970). Garcia-Ruiz contends the district court’s response to the jury’s question

erroneously allowed consideration of co-conspirators’ activities occurring long before his

involvement in the conspiracy began in October 2006. He also asserts the error was

clearly prejudicial because the jury’s question “suggests that, even if it was prepared to

convict Mr. Garcia-Ruiz of conspiracy to distribute drugs, it was not prepared to find that

he was responsible for distributing 5 kilograms or more of cocaine.” (Appellant’s Br. at

14.)

       The government responds that the purpose of the special verdict form was not to

determine personal criminal liability for a specific quantity. Rather, the purpose was to

determine the amounts applicable to the conspiracy as a whole for purposes of

establishing a maximum mandatory sentence for all co-conspirators. See United States v.

Stiger, 413 F.3d 1185, 1193 (10th Cir. 2005). Under 21 U.S.C. § 841, the statutory

maximum sentence for distribution of over 5 kilograms is life imprisonment. See 21

U.S.C. § 841(b)1(A). On the other hand, less than 5 kilograms but more than 500 grams

is a maximum sentence of forty years imprisonment. See 21 U.S.C. § 841(b)1(B). Once

the statutory maximum sentence for the conspiracy was set by the jury beyond a

                                            -8-
reasonable doubt, Garcia-Ruiz’s personal liability would be ascertained at sentencing by

a preponderance of the evidence. Thus, the court’s response was a correct statement of

law.

       We agree with the government; Stiger governs this issue. In Stiger, the defendant

argued the verdict forms erroneously required the jury to decide the amounts of each

different drug type for the entire conspiracy rather than those types and amounts

attributable to him. Id. at 1192. The district court concluded Apprendi3 did “not require

the jury in a conspiracy case to make individual findings as to each member of the

conspiracy, determined Mr. Stiger was integral to the conspiracy and could be sentenced

as though he were responsible for the full drug types and quantities, . . .” Id.

       We affirmed:

       Apprendi require[d] the jury only to set the maximum sentence ( i.e., the
       ceiling) under which each coconspirator’s sentence must fall. The judge,
       however, may determine the floor by finding the precise drug quantity
       attributable to each coconspirator. The jury is not required to make
       individualized findings as to each coconspirator because [t]he sentencing
       judge’s findings do not, because they cannot, have the effect of increasing
       an individual defendant’s exposure beyond the statutory maximum justified
       by the jury’s guilty verdict.

Id. at 1193 (quotations and citations omitted).

       Garcia-Ruiz attempts to distinguish Stiger by stating we did not address “whether

the jury can be instructed to consider drug[] quantities distributed prior to a defendant’s

joinder in a conspiracy.” (Appellant’s Br. at 14-15 n.2.) While we may not have directly

addressed this point, it is well-settled that “[g]enerally speaking, a defendant who joins an


       3
           Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                            -9-
ongoing conspiracy may be held accountable -- for purposes of determining the scope of

liability for the conspiracy charge itself -- with the acts or statements of coconspirators

that occurred prior to his entry into the conspiracy, if those acts or statements were in

furtherance of the conspiracy.” United States v. Hamilton, 587 F.3d 1199, 1207 (10th

Cir. 2009) (emphasis added), cert. denied, 130 S. Ct. 3443(2010). We distinguished

Glazerman, explaining, while “a defendant cannot be held liable for substantive crimes

committed by coconspirators prior to his entry in the conspiracy,” a defendant’s liability

for involvement in the conspiracy may include legal responsibility for acts of

coconspirators prior to that defendant’s entry into the conspiracy. Id. at 1208 n.5.

       Count 2 charged Garcia-Ruiz with intentionally conspiring to distribute 5

kilograms or more of cocaine. The special verdict form related solely to the conspiracy

count, not Garcia-Ruiz’s substantive counts of possession or distribution. Every member

of the conspiracy was thus potentially subject to a maximum penalty of life imprisonment

depending on their substantive participation to be proven at sentencing. The district court

properly instructed the jury as to the law.4



       4
         Even if we were to conclude the district court erred, any error would be
“harmless error.” Fed. R. Crim. P. 52(a). The government bears the burden of showing
that a nonconstitutional error is harmless. United States v. Wittgenstein, 163 F.3d 1164,
1169 (10th Cir. 1998). An error “is harmless unless it had a ‘substantial influence’ on the
outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v.
Cestnik, 36 F.3d 904, 910 (10th Cir. 1994). The record demonstrates the conspiracy
distributed well over 5 kilograms of cocaine during Garcia-Ruiz’s involvement with the
Camacho Group. Luis Camacho testified he observed Garcia-Ruiz pick up a shipment of
approximately 25 kilograms. Thus, we have no doubt the jury would have reached the
same conclusion on the special verdict form if it were instructed to consider only the
actions of the Camacho Group between October 2006 and January 2007.

                                               - 10 -
B.     Conduct Not Charged in the Indictment

       Over Garcia-Ruiz’s objection, Officer Mike Prince testified that on February 17,

2007, he saw Garcia-Ruiz riding as a passenger in a Ford Taurus. The Taurus entered a

parking lot and parked next to a white car. Garcia-Ruiz got out of the Taurus and entered

the front passenger side of the white car. Both cars then left and drove to another parking

lot about eight blocks away. The vehicles stopped for a few minutes and Garcia-Ruiz

then returned to the Taurus. The cars left the lot driving in different directions. Based on

Prince’s observations, uniformed officers were asked to assist. The white car was

stopped and officers found sixty-six grams of powder cocaine. Later that afternoon,

while Prince was conducting surveillance on a business, Prince saw the Ford Taurus and

several other vehicles arrive. The occupants, including Garcia-Ruiz, went in and out of

the business and then left in their respective vehicles. A traffic stop conducted on the

Taurus identified Garcia-Ruiz as a passenger and discovered a hollowed-out dictionary

containing 160 grams of cocaine.

       At the close of evidence that day, the court dismissed the jury and addressed

counsel:

       As I heard the ongoing evidence from Mr. Prince, I question whether I
       should have admitted it under 404(b), and my inclination is to give an
       instruction to the jury that the basic principle that any other criminal
       activity should not be considered by them as well as emphasizing, I guess,
       that there wasn’t any concrete evidence against him.

(R. Vol. 2 at 637-38.) The court invited counsel to state their positions and specifically

asked defense counsel to give some thought to a proposed instruction.

       The next day, defense counsel suggested the court give a limiting instruction but


                                           - 11 -
left it “to the Court’s good discretion as to what the appropriate verbiage or language

should be.” (Id. at 644.) During final instructions to the jury, the court instructed:

       The defendants are not on trial for any act or any conduct not specifically
       charged in the indictment. And in this regard, I want to observe for you
       that during the course of the trial, over defendants’ objection, I allowed
       Officer Prince to testify as to his ongoing surveillance of the defendant
       Garcia-Ruiz in matters that were unrelated to the charges that are before
       you. And you heard some testimony that with another individual there
       were some drugs found in the car.

       That evidence regarding the drugs should not have been admitted under the
       rules of evidence, in my opinion, and I ask you to disregard it. In general,
       the fact that someone’s accused of the crime may have committed another
       crime is not to be allowed in as evidence that he committed the crime with
       which he's charged. So I ask you to disregard that piece of the evidence
       that was given to you.

(Id. at 764-65.)

       Garcia-Ruiz argues the admission of this testimony was precluded by Rule 404(b)

of the Federal Rules of Evidence5 and its admission prejudiced him by allowing the jury

to add specific amounts of cocaine to the quantity it considered in determining he

conspired to distribute more than 5 kilograms of cocaine. We review the court’s

admission of evidence for an abuse of discretion. United States v. Bradshaw, 580 F.3d

1129, 1132 (10th Cir. 2009), cert. denied, 130 S. Ct. 2371 (2010).

       Assuming, without deciding, the court abused its discretion in admitting Prince’s


       5
           Federal Rule of Evidence 404(b) provides:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident . . . .


                                            - 12 -
testimony, we find no prejudice. Garcia-Ruiz relies on our holding in United States v.

Warledo, 557 F.2d 721, 726 (10th Cir. 1977). There, we held the admission of a gun

unrelated to the charge of arson conspiracy was prejudicial despite the court’s limiting

instruction. Id. We concluded the court’s instruction to consider the evidence solely for

impeachment purposes was insufficient, since the evidence was not admissible to

impeach the defendant. In addition, the court did not tell the jury the issue was collateral

to the charges and it did not address the effect of the evidence on his co-conspirators. Id.

This case is easily distinguished.

       Unlike Warledo, the limiting instruction to the jury here removed consideration of

this evidence for any purpose. The judge clearly told the jury Prince’s testimony should

not have been admitted. “We presume that jurors will follow clear instructions to

disregard evidence unless there is an overwhelming probability that the jury will be

unable to follow the court’s instructions, and a strong likelihood that the effect of the

evidence would be devastating to the defendant.” United States v. Lamy, 521 F.3d 1257,

1266 (10th Cir. 2008) (quotations omitted). In this case, not only was the instruction

clear, but there is no evidence the jury did not follow it. Moreover, the other evidence of

the conspiracy’s distribution of over 5 kilograms of cocaine during Garcia-Ruiz’s

involvement was substantial. The district court did not abuse its discretion in concluding

the instruction cured any earlier error.

C.     Drug Quantity at Sentencing

       Garcia-Ruiz challenges the procedural reasonableness of his sentence. He

maintains the district court erred when it rejected his claims that the evidence was

                                            - 13 -
insufficient to demonstrate the conspiracy distributed more than 150 kilograms of cocaine

during his involvement. We review the district court’s calculation of drug quantities at

sentencing for clear error and “will reverse only if the district court’s finding was without

factual support in the record or we are left with the definite and firm conviction that a

mistake has been made.” United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001).

The government has the burden of proving the quantity of drugs for sentencing purposes

by a preponderance of the evidence. Id.

       The district court overruled Garcia-Ruiz’s objection to the PSR’s drug quantity

calculation as follows:

       As the government has summarized, the evidence presented at trial covered
       a time period beyond the [sic] January 7, whatever the particular date was;
       and the evidence, although there was some conflict and you could certainly
       pick and choose perhaps what you wish to emphasize, but in general, that
       this was an ongoing, every-other week, significant amount of cocaine and
       cash being distributed and there’s no question that a reasonable jury could
       conclude and a reasonable fact finder could conclude that this defendant
       was involved in a conspiracy that involved more than 150 kilograms of
       cocaine.

(R. Supp. Vol. 2 at 23.)

       Garcia-Ruiz contends the government only proved, at best, he was involved in the

distribution of 80-100 kilograms of cocaine. The government contends “the district court

reasonably estimated the amount of cocaine attributable to Mr. Garcia-Ruiz to be over

150 kilograms of cocaine based on the testimony relating to the frequency of the

shipments over the course of the conspiracy, the size of the shipments, and the length of

Mr. Garcia-Ruiz’s involvement in the conspiracy.” (Government’s Br. at 34.)

Unfortunately the government offers no record support for its summary statement.

                                           - 14 -
       Viewing the evidence in the light most favorable to the government, we must

agree with Garcia-Ruiz. Garcia-Ruiz was involved in the conspiracy from late October

2006 until his arrest in April 2007. During that time, the government presented evidence

of four specific shipments: one in late October or early November 2006, one on

November 28, 2006, one on December 13, 2006; and the shipment confiscated on

January 8, 2007. Luis Camacho-Levario testified the quantity of drugs in the early

November 2006 and the January 8, 2007 shipments were each close to 25 kilograms,

totaling 50 kilograms. The runner who retrieved the December 13, 2006 shipment

testified it was “about” 24 kilograms. (R. Vol. 2 at 469.) Giving the government the

benefit of the doubt, another 25 kilograms would total 75. Luis testified, generally, the

shipments were 25 to 30 kilograms “about every other week.”6 (Vol. 2 at 216.) Given

that testimony, we will assume the November 28, 2006 shipment was 30 kilograms and

will also assume an additional 30 kilogram shipment was made between the

October/early November 2006 and November 28, 2006 shipments.7 These assumptions

add another 60 kilograms, totaling 135 kilograms. Luis said there were no further

shipments from Mexico after the January shipment was confiscated and the government

did not show the conspiracy received equivalent shipments from any source after January

2007. Thus, the quantity of cocaine from the Mexico shipments during Garcia-Ruiz’s

       6
        Although there was other testimony regarding the quantity of drugs, Luis’s
testimony was the most generous to the government. We defer to the district court when
reviewing the credibility of witnesses on whose testimony the district court relies in
making its drug quantity factual findings. United States v. Nieto, 60 F.3d 1464, 1469-70
(10th Cir. 1995).
       7
           The remaining known shipments were approximately two weeks apart.


                                           - 15 -
involvement from October 2006 through April 2007 was 135 kilograms.

       The record clearly indicates the availability of cocaine after the January

confiscation decreased dramatically. But one of Alejandro Camacho-Levario’s

customers testified as to how Garcia-Ruiz assisted him in the purchase of one kilogram of

cocaine on January 28, 2007. And a diligent review of the taped telephone conversations

beginning in November 2006 and continuing through April 25, 2007 – the day before the

arrests – reveals Luis purchased and sold approximately a kilogram of cocaine in

February. Even if we were to credit the amount discovered during Garcia-Ruiz’s traffic

stop in February 2007 -- 226 grams – for the purpose of sentencing, Garcia-Ruiz was

responsible for, at most, 137.226 kilograms of cocaine.

       We recognize that “[w]hen the actual drugs underlying a drug quantity

determination are not seized, the [sentencing] court may rely upon an estimate to

establish the defendant's guideline offense level so long as the information relied upon

has some basis of support in the facts of the particular case and bears sufficient indicia of

reliability.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotations

omitted). However, the government does not point to any basis in the facts which would

allow the district court to reach an estimate that the conspiracy distributed over 150

kilograms during Garcia-Ruiz’s participation. The government relies solely on Luis’s

testimony that the conspiracy distributed a quantity of 25-30 kilograms every two weeks.

But, as explained above, that mallet cannot ring the bell given testimony of specific

quantities in specific shipments.

       Accordingly, we conclude the district court erred when it calculated this portion of

                                            - 16 -
Garcia-Ruiz’s base offense level. It should have begun with a base offense level of 36,

see USSG § 2D1.1(c)(2) (at least 50 kilograms but less than 150 kilograms of cocaine),

rather than beginning its calculations with a base offense of 38. See USSG § 2D1.1(c)(1)

(trafficking 150 kilograms or more of cocaine). Any error in the guidelines calculation

requires a remand unless the error is harmless. United States v. Kristl, 437 F.3d 1050,

1054-55 (10th Cir. 2006). A harmless error is one which we can say “did not affect the

sentence selected.” United States v. Tom, 494 F.3d 1277, 1282 (10th Cir. 2007). It is the

government’s burden to convince us by a preponderance of the evidence the error is

harmless. United States v. Conlan, 500 F.3d 1167, 1170 (10th Cir. 2007).

       A district court must begin every sentencing proceeding by correctly calculating

the applicable Guidelines range.” United States v. Scott, 529 F.3d 1290, 1300 (10th Cir.

2008) (quotations omitted). “A sentence cannot . . . be considered reasonable if the

manner in which it was determined was unreasonable, i.e., if it was based on an improper

determination of the applicable Guidelines range.” Tom, 494 F.3d at 1282 (quoting

Kristl, 437 F.3d at 1055). If the district court had applied a base offense level of 36,

Garcia-Ruiz’s guideline range would have been 292 to 365 months imprisonment rather

than the 360 month to life.

       The government argues “the question of what the applicable base offense level

should have been is largely academic because Mr. Garcia-Ruiz received a much lower

sentence than he would have received even if the drug quantity evidence had only

supported a base offense level of 36, as opposed to 38.” (Government Br. at 34.) It

contends because “the district court’s variance was tied to the average sentences that

                                            - 17 -
were recommended by the Government for the leaders of the drug organization . . . 180

months,” there is no “assurance” Garcia-Ruiz’s sentence would be lower on remand. (Id.

at 36.) While this argument has obvious weight, it cannot carry the day.

       At the time of sentencing, the court thought Garcia-Ruiz, like the “kingpins,” was

responsible for the distribution of over 150 kilograms of cocaine. It was faced with a

difficult situation and wanted to “measure that in a fair way and come up with a sentence

that is sufficient but not greater than necessary.” (R. Supp. Vol. 2 at 26.) It recognized

the disparity between the actions of the different conspirators as compared to those of

Garcia-Ruiz (several years of distributing well over 150 kilograms of cocaine and

Garcia–Ruiz’s active involvement for no more than four months) as well as the proposed

sentences for others who had been significantly involved for a substantial period of time

(sentences ranging from 47 months for another runner in a position similar to Garcia-

Ruiz’s up to 194 months for Jose Muñoz, the main partner with Alejandro in the

Camacho Group.)

       We recognize these other defendants pled guilty prior to trial,8 but we cannot

know what the court would do in dealing with a correct drug amount. Therefore, the

error in calculation cannot be said to be harmless in this instance and we remand for

resentencing. It may be that the already lenient sentence would not change because the

amount of drugs was 130+ kilograms rather than 150. But that is a decision for the trial


       8
         We note some of these defendants’ agreements with the government occurred
less than one week before trial, thereby causing the government significant work over a
three-year time span.


                                           - 18 -
judge, not this Court.

       We wish to emphasize that we do not hold nor are we asked to determine whether

Garcia-Ruiz’s sentence is substantively unreasonable. Clearly, it is not. But the unique

circumstances of this case do not allow us assume the district court would impose the

same sentence on remand.

D.     Firearm Enhancement

       Garcia-Ruiz also claims procedural error at sentencing when the district court

added, over his objection, two levels to his base offense level pursuant to USSG §

2D1.1(b)(1) for the firearm found in his apartment. Because the firearm was discovered

at the time of his arrest, April 26, 2007, and the conspiracy was no longer distributing

drugs, he maintains the government failed to prove a spatial or temporal connection with

the gun and a drug transaction.

       The district court stated:

       The weapon issue is more difficult for me, but I would I think have to
       overrule the objection. The evidence presented no situation where the gun
       was connected with the defendant in an actual transaction. Yet again, as the
       government points out, one could reasonably conclude that the -- there was
       a sufficient relationship between the defendant's significant drug activity
       and the presence of a gun at a location where he was seen to come and go
       under surveillance and otherwise involving drug transactions so that that
       objection likewise is overruled.

(R. Supp. Vol. 2 at 24.) The district court’s findings of fact concerning the application of

a two-level increase under USSG §2D1.1(b)(1) are reviewed for clear error. United

States v. Robinson, 978 F.2d 1554, 1568 (10th Cir. 1992).

       USSG §2D1.1(b)(1) provides: “If a dangerous weapon (including a firearm) was



                                           - 19 -
possessed, increase by 2 levels.” “The enhancement for weapon possession reflects the

increased danger of violence when drug traffickers possess weapons. The adjustment

should be applied if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.” USSG §2D1.1(b)(1), comment, n.3 (2009).

“Weapon possession is established if the government proves by a preponderance of the

evidence that a temporal and spatial relation existed between the weapon, the drug

trafficking activity, and the defendant.” United States v. Roederer, 11 F.3d 973, 982

(10th Cir. 1993) (quotations omitted). “Generally, the government must provide

evidence that the weapon was found in the same location where drugs or drug

paraphernalia are stored or where part of the transaction occurred.” Id. at 983 (quotations

omitted). “Once the government has satisfied its initial burden, the burden shifts to the

defendant to show that it is clearly improbable the weapon was connected with the

offense.” United States v. Pompey, 264 F.3d 1176, 1181 (10th Cir. 2001).

       The evidence demonstrated Garcia-Ruiz occasionally used his apartment to store

smaller quantities of cocaine and proceeds from drug transactions. There is evidence he

did so until as late as January 18, 2007. The telephone wiretaps also established the

ongoing nature of the conspiracy through the date of Garcia-Ruiz’s arrest and the seizure

of the gun, April 26, 2007. However, no evidence of drugs, drug paraphernalia or

proceeds were found at Garcia-Ruiz’s apartment on that date. Garcia-Ruiz argues

because there was no evidence he was observed carrying a firearm while acting as a

runner for the Camacho brothers, no evidence that he was overheard talking about a

firearm on any of the intercepted phone calls, and no evidence the firearm was in the

                                           - 20 -
residence he shared with his wife prior to April 26, 2007, the government failed to prove,

by a preponderance of the evidence, the necessary temporal relationship between the

weapon, the drug trafficking activity, and the defendant. We disagree.

       Under USSG §1B1.3(a)(1), the application of a specific offense characteristic such

as §]2D1.1( b)( 1), requires the court to consider “all acts and omissions committed,

aided [or] abetted . . . that occurred during the commission of the offense of conviction . .

. .” Here, the government proved the gun was in the apartment, Garcia-Ruiz knew it was

there, he had used the apartment to further the conspiracy to traffic cocaine (the offense

of conviction) and, at the time the gun was discovered, he was a member of the

conspiracy. Therefore, the government sufficiently proved the enhancement applied. See

United States v. Martinez, 77 Fed. App’x 490, 500 (10th Cir. 2003)9 (fact that gun

possessed during conspiracy sufficient even though no evidence showing defendant

“carried, brandished, loaned, accessed, or held the weapon during any drug transaction or

that the weapon was present or nearby”). Garcia-Ruiz argued only that the enhancement

did not apply. He made no argument that it was clearly improbable the weapon was

connected with the offense. The district court’s application of the firearm enhancement

was not clearly erroneous.




       9
         Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Martinez as we would an opinion from another circuit, persuasive because of
its reasoned analysis.


                                           - 21 -
      Garcia-Ruiz’s conviction is AFFIRMED. We REVERSE as to the applicable drug

quantity for sentencing purposes and REMAND for resentencing.



                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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