                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 11 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-10316

              Plaintiff - Appellee,              D.C. No. 2:09-cr-358-WBS-2

 v.
                                                 MEMORANDUM*
RAMIRO SUAREZ,

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                              Submitted July 7, 2016**
                              San Francisco, California

Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Defendant-Appellant Ramiro Suarez pleaded guilty to the following drug-

related offenses pursuant to 21 U.S.C. §§ 841 and 846: conspiracy, manufacturing

at least 1,000 marijuana plants, distribution of methamphetamine, and possession

with intent to distribute methamphetamine. Suarez also pleaded guilty to being an

alien in possession of a firearm pursuant to 18 U.S.C. 922(g)(5)(A). The district

court sentenced Suarez to a prison term of 216 months. Suarez appeals his

sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and

we affirm in part, reverse in part, and remand the case for resentencing.

      First, Suarez argues that the district court erred in applying a 2-level

enhancement pursuant to United States Sentencing Guidelines Manual

(“U.S.S.G.”) § 3B1.1(c) based on his leadership role in the conspiracy. Section

3B1.1(c) states that a court should increase an offense level by two levels based on

a defendant’s role in an offense if “the defendant was an organizer, leader,

manager, or supervisor of any criminal activity other than described in (a) or (b).”

See U.S.S.G. § 3B1.1(c). Application Note 2 to section 3B1.1 states that “an

upward departure may be warranted, however, in the case of a defendant who did

not organize, lead, manage, or supervise another participant, but who nevertheless

exercised management responsibility over the property, assets, or activities of a

criminal organization.” U.S.S.G. § 3B1.1, cmt. n.4. We review the district court’s


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interpretation of the Sentencing Guidelines de novo. United States v. Smith, 719

F.3d 1120, 1123 (9th Cir. 2013).

      The district court incorrectly interpreted the sentencing guidelines when it

accepted the government’s argument that it could apply an enhancement pursuant

to section 3B1.1(c) solely based on Suarez’s management of property or assets of

the criminal organization. Such management is insufficient to warrant application

of the enhancement, as a court must find a defendant exercised some level of

control over another participant prior to applying the enhancement. In this circuit,

“some degree of control or organizational authority over others is required in order

for section 3B1.1 to apply.” United States v. Bonilla-Guizar, 729 F.3d 1179, 1186-

87 (9th Cir. 2013) (emphasis in original) (quoting United States v. Mares–Molina,

913 F.2d 770, 773 (9th Cir. 1990)). In other words, “[c]ontrol over the activities or

assets of a criminal organization may [] support an upward departure from the

guidelines, but may not contribute to the calculation of the guidelines sentence.”

United States v. Whitney, 673 F.3d 965, 975 n.6 (9th Cir. 2012). Because the

district court misinterpreted the guidelines, affecting its calculation of the

applicable offense level and the resulting guidelines range, we reverse and remand

the case for resentencing.




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      Second, Suarez argues that the district court erred in applying a 2-level

enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based on the presence of firearms

in a locked compartment under Suarez’s bed at his residence. Pursuant to section

2D1.1(b)(1), courts are instructed to apply a 2-level enhancement to a defendant’s

offense level where “a dangerous weapon (including a firearm) was possessed.”

See United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). This Circuit

interprets “possession” broadly. United States v. Pitts, 6 F.3d 1366, 1372 (9th Cir.

1993); see also United States v. Boykin, 785 F.3d 1352, 1364 (9th Cir. 2015), cert.

denied, 136 S. Ct. 272 (2015) (stating that to show constructive possession, the

government need only show “a sufficient connection between the defendant and

the contraband to support the inference that the defendant exercised dominion and

control over the [contraband]”) (quoting United States v. Kelso, 942 F.2d 680, 682

(9th Cir. 1991)). However, Application Note 3 to section 2D1.1 provides for an

exception, stating that a court should not apply the adjustment where “it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. §

2D1.1(b)(1), cmt. n.3. The defendant bears the burden of showing that it is

“clearly improbable” that he or she possessed a dangerous weapon in connection

with an offense. Ferryman, 444 F.3d at 1186. We review for clear error a district




                                          4
court’s factual finding that a defendant possessed a dangerous weapon in

connection with a drug offense. Kelso, 942 F.2d at 681; Smith, 719 F.3d at 1123.

      Here, the district court did not clearly err in finding that (1) Suarez

possessed the guns during the drug offenses, and (2) Suarez did not demonstrate

that it was clearly improbable that the guns were connected to the offenses. The

district court’s findings are supported by the following facts. Police found multiple

guns under Suarez’s bed at his own home, where only Suarez, his wife and

children lived. Further, multiple drug transactions had occurred at Suarez’s home,

and police found a large quantity of drugs and some evidence of drug trafficking in

and around the home. See e.g., United States v. Kyllo, 37 F.3d 526, 531 (9th Cir.

1994) (upholding enhancement where two guns were present at the same residence

as a marijuana grow operation); United States v. Lopez-Sandoval, 146 F.3d 712,

715 (9th Cir. 1998) (stating “[w]e have upheld an enhancement for weapons

possession when the record showed that on the day that a drug transaction took

place, the defendant was living in a place where a weapon was found four months

later,” even though the drug transaction did not occur at his residence). Further,

the fact that the guns were in a locked compartment in Suarez’s residence at the

time the police discovered them does not render it clearly improbable that the

weapons were connected to the drug offenses. This is particularly true in light of


                                           5
the fact that the presentence report that the district judge adopted stated that Suarez

had conducted other drug transactions at his home during the course of his nearly

nine-month span of criminal conduct. See Pitts, 6 F.3d at 1373 (holding that a

district court may consider the entire course of a defendant’s criminal conduct, not

just the offense of conviction, in determining whether a firearm is connected with a

drug offense).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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