                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 16, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-7048
 v.                                           (D.C. No. 04-CR-00061-001-W H )
                                                     (E.D. of Oklahoma)
 ISM AEL M ORA LES,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and HO LM ES, Circuit Judges.


      Defendant-Appellant Ismael M orales pleaded guilty to possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A)(viii) and 18 U.S.C. § 2. The district court sentenced him to a term

of imprisonment of 174 months and 60 months of supervised release. M r.

M orales raises two challenges to his sentence. First, he argues that the district

court improperly treated the United States Sentencing Guidelines (“Guidelines”)

as mandatory. Second, he alleges there is insufficient evidence to support the




      *
              This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
application of a two-level Guidelines enhancement for possession of a “dangerous

weapon” under § 2D1.1(b)(1). Our jurisdiction arises under 18 U.S.C. § 1291,

and we affirm.

                                I. BACKGROUND

      M r. M orales is a M exican citizen who resided in Arkoma, Oklahoma with

his brother, M artin M orales. 1 Drug Enforcement Administration (“DEA”) agents

devised a plan under which a confidential source would purchase

methamphetamine from M r. M orales. On April 15, 2004, the confidential source

made a controlled drug purchase from M r. M orales at the residence that he shared

with his brother. The source wore a hidden camera to record the purchase.

Following the April 15 th purchase, the confidential source told the DEA that a

firearm w as on a table near M r. M orales during the purchase. Only one DEA

agent testified at the sentencing hearing. He recounted the confidential source’s

communication, which another DEA agent who took part in the conversation with

the source had relayed to him. The testifying agent said he watched the video of

the April 15 th purchase, but could not positively identify the presence of a weapon

due to the tape’s poor pictorial quality.

      Five days later on April 20, 2004, DEA agents arranged another controlled

purchase through the confidential source – this time from M r. M orales’s brother.

      1
             To avoid confusion, when we refer to defendant-appellant Ismael
M orales by name, we will call him “M r. M orales”; when we discuss his brother
by name, we will use his full name, M artin M orales.

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A fter the purchase, M r. M orales’s brother was arrested outside of his home. O n

the same day, M r. M orales also was arrested.

      The DEA agents then executed a search warrant and seized a shotgun, bolt-

action rifle, a semi-automatic rifle, and a loaded .45 caliber pistol from the

bedroom closet of M r. M orales’s brother. They also found in the residence

amm unition and a large amount of cash. The testifying DEA agent said that he

also personally saw what appeared to be a firearm on a table near the front door.

However, he subsequently realized it was a replica gun and decided to leave it in

the home.

      On June 8, 2004, M r. M orales was formally charged with possessing with

the intent to distribute methamphetamine, in a quantity in excess of 50 grams, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2. M r.

M orales entered a plea of guilty that same day.

      At the sentencing on September 23, 2004, M r. M orales objected to the

presentence investigation report (“PSR”) arguing that the government presented

insufficient evidence to support a sentence enhancement for possession of a

“dangerous weapon” (i.e., a firearm) under the Guidelines. He also claimed the

Guidelines were unconstitutional under Blakely v. Washington, 542 U.S. 296

(2004). The district court, however, found the enhancement was supported by a

preponderance of the evidence and adopted the PSR as the factual basis for the

sentence. The court sentenced M r. M orales to 174 months’ imprisonment, with

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60 months of supervised release. M r. M orales appealed the sentence, and on

M arch 17, 2005, we vacated the sentence and remanded for resentencing in

accordance with United States v. Booker, 543 U.S. 220 (2005). See Order, Case

No. 04-7107 (M ar. 17, 2006) (unpublished).

      On April 14, 2005, the district court held a resentencing hearing, and M r.

M orales again objected to the firearm-possession enhancement. W ith approval

from the parties, the district court took judicial notice of the testimony and

evidence presented at the initial sentencing hearing. It then overruled M r.

M orales’s objection and sentenced him to 174 months’ imprisonment and 60

months of supervised release – the same sentence it had imposed in the prior

sentencing. M r. M orales timely appealed.

                                 II. D ISC USSIO N

      “Even after Booker, when reviewing a district court’s application of the

Sentencing Guidelines, we review legal questions de novo and . . . any factual

findings for clear error, giving due deference to the district court’s application of

the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289, 1295 (10th

Cir. 2006) (internal quotation marks and alterations omitted). The ultimate

sentence is then reviewed for reasonableness. See, e.g., United States v. Kristl,

437 F.3d 1050, 1053-54 (10th Cir. 2006).




                                          -4-
      A.     The District Court Did Not Apply the G uidelines in A
             M andatory Fashion and, Consequently, Did N ot Err

      On appeal, M r. M orales contends that the district court “strictly adhered” to

the Guidelines and thereby contravened Booker. M r. M orales argues that he

would have received a lower sentence if the district court had not erred in giving

too much weight to the Guidelines.

      In Booker, the Supreme Court held that mandatory application of the

Guidelines to judge-found facts (other than a prior conviction) violates the Sixth

Amendment. 543 U.S. at 232-33. To cure the constitutional problems, the C ourt

excised provisions of the Sentencing Reform Act, effectively making the

Guidelines advisory instead of mandatory. See Wolfe, 435 F.3d at 1292 n.1.

      Booker provides that “while not bound to apply the Guidelines, [a district

court] must consult those Guidelines and take them into account when

sentencing.” Booker, 543 U.S. at 264. Importantly, Booker did not preclude a

district court in exercising its discretion from giving significant weight to the

Guidelines, which embody the expert judgment of the U.S. Sentencing

Commission. See United States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006)

(“[W]e cannot say that a district court errs when it gives a high degree of weight

to the Guidelines in its sentencing decisions.”). In this regard, we noted in United

States v. Crockett, 435 F.3d 1305 (10th Cir. 2006), that a district court may

appropriately give “a high level of deference” to recommendations provided in



                                         -5-
the Guidelines to keep sentencing moving “‘in Congress’ preferred direction,

helping to avoid excessive sentencing disparities while maintaining flexibility

sufficient to individualize sentences where necessary.’” 435 F.3d at 1318

(quoting Booker, 543 U.S. at 264); see Terrell, 445 F.3d at 1264 (noting that

“[e]ven after Booker, deference to the Guidelines is essential” to advance the

objective of sentencing uniformity).

      The district court was well aware of the advisory nature of the Guidelines

after Booker and the permissible scope of its discretion as it relates to them. The

court explicitly stated:

             W hile the Court recognizes it is not bound by the sentencing
             guideline calculations, the Court has considered them and finds
             them to be advisory in nature. Also taken into account when
             fashioning a sentence for this defendant is his cooperation with
             authorities and timeliness of his plea in this case. The
             sentence prescribed by this Court reflects the seriousness of
             the offense, promotes respect for the law and provides just
             punishment for the offense. This sentence affords deterrence
             to criminal conduct, protects the public from further crimes of
             this defendant and provides correction treatment for the
             defendant in the most effective manner.

R. vol. III, Tr. Sentencing Hearing at 14-15 (April 14, 2005).

      Recognizing the Guidelines to be advisory, the district court properly

consulted them. However, it also reviewed the PSR, weighed the testimony

presented at sentencing, and considered the § 3553(a) factors. Insofar as the

district court in fact afforded significant weight to the Guidelines in fashioning

M r. M orales’s sentence, it did not err.

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      B.    The District Court Did N ot Err in Incorporating into M r.
            M orales’s Sentence A Tw o-Level Enhancement Under G uidelines
            § 2D1.1(b)(1)

      M r. M orales argues that the government produced insufficient evidence to

support a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of

a dangerous weapon (i.e., a firearm). Specifically, he contends that because the

authorities seized the guns from his brother’s room five days following his

admitted drug transaction, the government failed to meet its burden of

demonstrating that he possessed the guns. W e disagree.

      The Guidelines provide a sentence enhancement for w eapon possession to

reflect the “increased danger of violence when drug traffickers possess weapons.”

U .S.S.G . § 2D1.1 cmt. n.3. Section 2D1.1(b)(1) applies if the government can

prove by a preponderance of the evidence that a weapon was present, unless the

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

the offense.” U .S.S.G. § 2D1.1 cmt. n.3; see United States v. Zavalza-Rodriguez,

379 F.3d 1182, 1184-85 (10th Cir. 2004). Generally, possession under §

2D1.1(b)(1) can be “satisfied by showing mere proximity to the offense.” United

States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997).

       Under Guidelines § 1B1.3(a), a defendant is held accountable for “all acts

and omissions committed, aided, abetted, counseled, comm anded, induced,

procured or willfully caused by the defendant” that were part of the same course

of conduct or common scheme or plan as the offense of conviction. U.S.S.G. §

                                        -7-
1B1.3(a). Section 1B1.3’s commentary further explains that a defendant may be

held responsible for the “conduct of others in furtherance of the execution of the

jointly-undertaken criminal activity that was reasonably foreseeable.” United

States v. M cFarlane, 933 F.2d 898, 899 (10th Cir. 1991) (internal quotation marks

omitted); see U.S.S.G. § 1B1.3 cmt. n.2. It is of no moment that those engaged in

jointly-undertaken criminal activity are not formally charged with a conspiracy

offense. Id. (defining “jointly undertaken criminal activity,” as focusing on

conduct undertaken “by the defendant in concert with others, whether or not

charged as a conspiracy”); see U.S.S.G. § 1B1.3 cmt. n.1.

      Here, M r. M orales was charged and convicted of a drug trafficking offense,

which included an aiding and abetting theory of liability. See R. vol. I, Doc. 7

(criminal information); 18 U.S.C. § 2; see generally United States v. Cook, 745

F.2d 1311, 1315 (10th Cir. 1984) (“It should be noted that aiding and abetting is

not an independent crime under 18 U.S.C. § 2; the statute provides no penalty, but

merely abolishes the common-law distinction between principal and accessory.”)

M r. M orales has not disputed that he was involved in the offense with his brother

(i.e., M artin M orales). For instance, he failed to object to the PSR’s factual

recitations, which revealed his jointly-undertaken drug trafficking with his

brother. See R. vol. II, PSR ¶ 17 (“In this case, Ismael and M artin M orales were

involved in the distribution of methamphetamine.”). Accordingly, the district

court could properly attribute to M r. M orales all of the reasonably foreseeable

                                          -8-
acts undertaken by his brother in furtherance of their jointly-undertaken criminal

activity. See McFarlane, 933 F.2d at 899 (finding that §§ 2D1.1(b)(1) and

1B1.3(a)(1) together allow a sentencing court “to attribute to a defendant weapons

possessed by his codefendants if the possession of weapons was known to the

defendant or reasonably foreseeable by him”).

      W e conclude that M artin M orales’s possession of firearms in the residence

that he shared with M r. M orales was reasonably foreseeable to M r. M orales. The

residence was the locus of the brothers’ drug-trafficking operation. W e have

recognized that firearms are “tools of the trade” for drug traffickers. See United

States v. M artinez, 938 F.2d 1078, 1083 (10th Cir. 1991) (noting firearms and

large amounts of cash are viewed as “tools of the trade” for drug trafficking);

accord United States v. Soto, 959 F.2d 1181, 1187 (2d Cir. 1992) (“firearms are

as much tools of the trade as are commonly recognized articles of narcotics

paraphernalia” (internal quotation marks omitted)).

      Validating this view, the agents seized firearms from the bedroom closet of

M r. M orales’s brother on the day that he sold methamphetamine to the

confidential source. That was only five days after the confidential source

purchased methamphetamine at the residence from M r. M orales. There is no

evidence in the record to suggest that M r. M orales’s brother (M artin M orales)

attempted to conceal the presence of the firearms from M r. M orales. For




                                          -9-
example, there is no evidence that M artin M orales took special steps to limit M r.

M orales’s access to the firearms. 3

      The referenced facts strongly support the conclusion that the firearms were

reasonably foreseeable to M r. M orales. Consequently, under the Guidelines, M r.

M orales is accountable for the firearms. 4   And it hardly can be gainsaid that the

firearms were in close proximity to the drug-trafficking offense. See United

States v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001) (holding that government

had “met its burden of proof regarding possession in proximity to the offense,”

when gun found “physically near” the defendant in a location that was “repeatedly

the locus for drug trafficking” 24 days following defendant’s “last documented

drug activity”).




      3
             M r. M orales would likely offer the following retort: “No testimony
was presented that Appellant had access to . . . the guns seized from his brother’s
bedroom.” Aplt. Br. at 5. However, there was abundant evidence that the
firearms were in a residence that M r. M orales shared with his brother. Absent
proof to the contrary, one may reasonably infer that he in fact had access to them.
See United States v. M cFarlane, 933 F.2d 898, 899 (10th Cir. 1991). In
presenting his objections to the U.S. Probation Office, M r. M orales asserted that
the firearms were in his brother’s bedroom “under lock and key.” R. vol. II, Letter
of Defense Counsel to U.S. Probation Office at 1 (Aug. 20, 2004) (PSR
attachment). No evidence in the record supports that assertion.
      4
             M r. M orales argues that the district court should have focused on
whether he personally possessed dangerous w eapons and that it improperly held
him accountable for firearms associated with his brother. Because the presence of
those firearms w as reasonably foreseeable to M r. M orales, as a matter of law , this
argument is without merit.

                                         -10-
      If there is sufficient proof that a dangerous w eapon (chargeable to

defendant) was in proximity to the drug offense, the burden shifts to the

defendant to demonstrate that it is clearly improbable the weapon was connected

to the offense. E.g., Zavalza-Rodriguez, 379 F.3d at 1184-85. M r. M orales,

however, has made no meaningful attempt to carry this burden; the focus of his

argument was the alleged “w eak nature of the G overnment’s evidence of firearm

possession.” A plt. Br. at 7. Accordingly, we conclude that the district court did

not err in applying a § 2D1.1(b) enhancement to M r. M orales.

      The district court’s sentencing order is AFFIRM ED.



                                       Entered for the Court

                                       Jerome A. Holmes
                                       Circuit Judge




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