                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 November 16, 2010
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 10-8035
 v.                                                     (D. Wyoming)
 GABRIAL J. LOBATO,                            (D.C. No. 06-CR-00178-CAB-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Gabrial Lobato seeks to appeal the 360-month

sentence he received after pleading guilty to one count of conspiracy to traffic in




      *
        This order and judgment is not binding precedent except under the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.
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. For

the following reasons, we dismiss this appeal.



                                 BACKGROUND

      I. Procedural History

      This appeal has come before our court in an unusual way. As indicated

above, Mr. Lobato pled guilty to one count of conspiracy to possess with intent to

distribute, and to distribute 500 grams or more of methamphetamine, and was

sentenced to 360 months’ imprisonment, five years of supervised release, and a

fine of $1,500. After filing a timely notice of appeal, Mr. Lobato’s attorney filed

an Anders brief and moved to withdraw as counsel. Our court denied the motion,

however, after the government conceded an error had occurred at the sentencing

hearing. Our court then remanded the case for resentencing.

      On remand, the district court allowed Mr. Lobato’s original attorney to

withdraw as counsel and appointed a different attorney to represent him. A

resentencing hearing ensued on June 16, 2008, at which Mr. Lobato was again

sentenced to 360 months’ imprisonment, five years of supervised release, and a

$1,500 fine.

      At the conclusion of the resentencing hearing, the newly appointed

substitute attorney for Mr. Lobato asked the district court to be relieved from

representing Mr. Lobato in a direct appeal because he had a heavy trial case load.

                                        -2-
The district court stated that it would not impose the appellate work on the

attorney, and then stated that “[s]omeone else from the appellate panel of the

defenders panel group is hereby appointed to represent Mr. Lobato.” Tr. of

Resentencing Hr’g at 23, R. Vol. 3 at 62. In fact, no other attorney was appointed

at that time to represent Mr. Lobato. The district court then advised Mr. Lobato

that, based upon his many years as a judge, Mr. Lobato would be better off

cooperating with the government than pursuing another appeal. Mr. Lobato

responded, “[y]our honor, I know that’s an option. It’s an option I’m not willing

to take.” Id.

      The district court subsequently gave the following advisement to Mr.

Lobato about filing a notice of appeal: “I thought that was implied, but you do

have 10 days from this date to file a notice of appeal. Unless you do file a notice

. . . with the clerk of this court, you won’t be able to appeal it.” Id. at 24.

      Mr. Lobato’s substitute attorney never filed a notice of appeal, nor did he

file a formal motion to withdraw as the attorney of record. This may have been

because, based upon the district court’s pronouncement at the resentencing

hearing, he thought that another attorney had already been appointed to represent

Mr. Lobato. On December 15, 2008, some six months after the resentencing

hearing, Mr. Lobato wrote to the clerk of the district court asking who his new

attorney was. He indicated that he wanted to know that information before the

time for appealing his case expired. The clerk of the district court advised

                                           -3-
Mr. Lobato to contact his attorney of record (the attorney who had represented

him at the resentencing hearing).

      On April 6, 2010, Mr. Lobato wrote directly to the district court judge who

had presided over his resentencing hearing, asking about the status of his court-

appointed appellate attorney. Mr. Lobato indicated that he had never been

contacted by the attorney who was supposed to handle his appeal, and he sought

help in getting in touch with that individual.

      On April 16, 2010, the district court appointed Mr. Lobato’s current

counsel to represent him on direct appeal. His current attorney filed an entry of

appearance and a notice of appeal the following day.

      Our court issued an order tolling further activity on the case until the

parties both briefed the issue of jurisdiction, in view of Mr. Lobato’s notice of

appeal which was indisputably filed late. The government has not filed a motion,

under Fed. R. App. P. 4(b), asserting that Mr. Lobato’s appeal should be

dismissed as untimely. Both parties have briefed the issue, and both agree that

we should accept jurisdiction over this appeal and proceed to address it. Our

court then allowed the case to continue, reserving the jurisdictional question to

us, as the panel on the merits. Because the untimeliness of Mr. Lobato’s appeal

was in no way his fault, and for the various reasons both parties have given us to

accept jurisdiction over this appeal, we do so. Accordingly, we now proceed to

Mr. Lobato’s appeal.

                                          -4-
      II. Factual Background

      Mr. Lobato pled guilty pursuant to a plea agreement. Because the single

issue is whether the district court properly added a two-level enhancement to

Mr. Lobato’s total offense level when calculating the advisory sentencing range

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

we identify the relevant references to that enhancement in the record.

      In the plea agreement, Mr. Lobato “agree[d] to give the court a complete

and truthful basis for this offense.” Plea Agreement ¶ 7, Supp. R. Vol.1 at 15.

Further, the agreement provided that “[t]he United States and the Defendant agree

the facts in the underlying investigation demonstrate by a preponderance of the

evidence that the Defendant possessed a firearm during the commission of the

offense, and thus qualifies for an upward adjustment of two offense levels

pursuant to USSG § 2D1.1(b)(1).” Id. ¶ 8.

      In the change of plea proceedings, government counsel referred several

times to the agreement between the parties that the facts demonstrate by a

preponderance of the evidence that Mr. Lobato possessed a firearm during the

commission of the offense. Tr. of Sentencing Proceedings at 6, 9, 10.

Mr. Lobato himself testified, under oath, that he possessed a gun:

      THE COURT: . . . Were you at a hunting camp in the Big Horn
      Mountains?

      THE DEFENDANT: Yes, I was.


                                        -5-
      THE COURT: And was there a Katherine Rinker there?

      THE DEFENDANT: Yes, she was.

      THE COURT: And [government counsel] says that she saw you with
      a hunting rifle in your possession.

      THE DEFENDANT: That’s correct.

      THE COURT: Is that right?

      THE DEFENDANT: That’s correct.

      THE COURT: You admit having one?

      THE DEFENDANT: Yes, I do.

Id. at 25-26. The court then expressly found “that the defendant did, in fact, have

a firearm during that relevant period of time in the Big Horn Mountains in

Wyoming.” Id. at 27.

      Next, following the remand from our court, during the resentencing

proceedings, government counsel again stated that the government and Mr.

Lobato “also agreed that the facts underlying the investigation demonstrated by a

preponderance of the evidence that the defendant possessed a firearm during the

commission of the offense, and, therefore, qualified for a two-level adjustment.”

Tr. of Resentencing Proceedings at 3, R. Vol. 3 at 42. Other witnesses were

prepared to testify as to Mr. Lobato’s possession of a rifle. Id. at 11.

      Further, the district court explicitly stated that it adopted “all of the

findings in the PSR.” Id. at 22. The presentence report (“PSR”), prepared by the


                                          -6-
probation office in anticipation of sentencing, referred no less than five times to

the fact that Mr. Lobato carried a rifle with him at various times when he also

distributed methamphetamine. In calculating Mr. Lobato’s advisory guideline

sentence, the PSR recommended the “two-level enhancement for possessing a

firearm.” PSR ¶ 11, R. Vol. 2. Mr. Lobato made no objection to the PSR.

      In addition, at Mr. Lobato’s original sentencing proceeding, prior to our

remand for resentencing, Mr. Lobato’s counsel and Mr. Lobato admitted that he

possessed a gun. Sentencing Proceedings at 9, 12, R. Vol. 3 at 9, 12.

Accordingly, there can be no doubt that Mr. Lobato clearly admitted, under oath,

and the court clearly found, that he possessed a firearm during the commission of

the conspiracy and the two-level enhancement applied. And, he never registered

an objection to the application of the enhancement, despite the number of times it

was stated as an established fact.

      The court calculated Mr. Lobato’s 360-month sentence by applying a base

offense level of 36, adding two levels for the firearm possession, adding three

more levels for his “aggravating role” in the offense, and deducting three levels

for his acceptance of responsibility, thereby calculating a total offense level of

38. With a criminal history category of VI, that yielded an advisory guidelines

sentencing range under the United States Sentencing Commission Guidelines

Manual (“USSG”) of 360 months to life. The court selected 360 months, at the

bottom of the sentencing range.

                                          -7-
      Mr. Lobato challenges that sentence on a single ground—that the court

erred in adding two levels for possession of a firearm. We conclude that that

argument is not available to Mr. Lobato.



                                  DISCUSSION

       USSG §2D1.1(b)(1) provides for a two-level enhancement “[i]f a

dangerous weapon (including a firearm) was possessed” during the drug

trafficking offense, and reflects the “increased danger of violence when drug

traffickers possess weapons.” USSG § D1.1 cmt.n.3. Commentary to

§2D1.1(b)(1) states the enhancement applies “if the weapon was present, unless it

is clearly improbable that the weapon was connected with the offense.” Id.

Generally, we have held possession under §2D1.1(b)(1) is “satisfied by showing

mere proximity to the offense.” United States v. Smith, 131 F.3d 1392, 1400

(10th Cir. 1997).

      “The government bears the initial burden of proving possession by a

preponderance of the evidence.” Id. “This burden is satisfied when the

government demonstrates that a temporal and spatial relation existed between the

weapon, the drug trafficking activity, and the defendant.” United States v.

Williams, 431 F.3d 1234, 1237 (10th Cir. 2005) (quotation marks and citation

omitted). As a result, the government need only show the weapon was found in

the same location where the drugs or drug paraphernalia are stored or in the

                                           -8-
general vicinity of where part of the drug activity occurred. See id. Once the

government meets its burden, the burden shifts to the defendant to prove that “it

is clearly improbable that the weapon was connected to the offense.” United

States v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001) (internal quotation marks

omitted).

      Ignoring the fact that he and his attorney admitted the establishment of the

enhancement numerous times, Mr. Lobato argues the government never carried its

burden of establishing facts to support the enhancement. He concedes that, were

we to review this question, it would be for plain error.

      We view the multiple references to the enhancement as concessions or

admissions by Mr. Lobato that the enhancement was proven and applies. While

he argues the government failed to meet its burden to establish possession of a

firearm by a preponderance of the evidence, the government did not need to meet

that burden in the face of those concessions. He cannot admit a fact, and then, on

appeal, claim the government failed to establish that fact. Mr. Lobato relieved

the government of its burden by his concessions.

      Moreover, Mr. Lobato never presented facts rebutting the government’s

case, showing that it was “clearly improbable” that the firearm was connected to

the drug trafficking.

      Because Mr. Lobato waived the only argument he makes on appeal, we

dismiss this appeal.

                                         -9-
                         CONCLUSION

For the foregoing reasons, we DISMISS this appeal.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -10-
