                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      April 10, 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. 06-2267
 v.                                             (D.C. No. 06-CR-94-01-JB)
                                                   (D. of New M exico)
 SERGIO SEANEZ,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.




      Appellant-Defendant Sergio Seanez pleaded guilty to conspiracy, and

possession with intent to distribute m ore than 100 kilograms of marijuana, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. The

district court sentenced Seanez to serve a total of 97 months’ imprisonment, to be

followed by a four-year term of supervised release. Seanez now challenges his




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10 th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 10 th Cir. R. 32.1.
sentence on appeal, alleging error with three distinct sentencing enhancements

that together total a six-level upward adjustment. W e exercise jurisdiction under

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. W e conclude that the district court

properly applied the United States Sentencing Guidelines (“Guidelines”) and

affirm the sentence.

                                   I. Background

         On October 24, 2005, the Drug Enforcement Administration (“DEA”)

received information from a confidential informant concerning a possible “stash

house” in Chaparral, New M exico. The informant claimed that “Homie,” later

identified as Seanez, acted as the leader of an organization that distributed

marijuana throughout the United States. He reportedly received kilogram

quantities of marijuana from an unidentified person from M exico, stored the drugs

at his residence in New M exico, and arranged for nationwide distribution of the

drugs.

         The informant also provided the DEA agents with the following details: the

home address for Seanez; the amount of marijuana Seanez received

(approximately 700 pounds); the date that he received it, October 23, 2005; the

location where Seanez stored the marijuana, a recreational vehicle (“RV”) in his

backyard; Seanez’s plan to conceal the marijuana in a false floor compartment of

a boat, which was also located in his backyard, with the help of a Hispanic m ale

known as “Flaco,” later identified as Nolberto Lopez-Pinedo; and the fact that the

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boat was to be towed to an unknown location by an unknown individual the

following day.

      Based upon this tip, DEA agents established a surveillance of the house.

They observed the RV and boat parked in the back of the residence and witnessed

Seanez and Lopez-Pinedo working on the boat. The agents next witnessed Seanez

bring a blue bundle from his residence to Lopez-Pinedo who placed the bundle

inside the boat. The agents w atched Seanez take a similar action approximately

six times, delivering a blue bundle from his residence to Lopez-Pinedo at the

boat. Then the pair got in a car and left the residence.

      The DEA agents followed the men and contacted the Otero County

Sheriff’s Department and requested a traffic stop of the vehicle. W hen asked by

the DEA agents about his identity once his vehicle was stopped, Seanez provided

a false New M exico driver’s license with the name Arturo Cisneros. After the

DEA explained that its agents had observed the two men loading suspected

bundles of marijuana into the boat, the agents asked for the names of any others

involved, but Seanez declined to offer names. Seanez consented to a search of his

residence, but he wanted to tell his family good-bye.

      Upon returning to the residence, the agents obtained the permission of

Seanez’s wife to search the property. The search revealed eight bundles of

marijuana in the boat and 25 bundles of marijuana inside the RV, along with a

weight scale and 10 plastic bags with a plaid design used to hold the drug

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bundles. Inside the residence, the agents found two plastic bags in the washer and

dryer, identical to those in the RV, and an unloaded Taurus .357 M agnum

revolver, in plain view, on the entertainment stand in the master bedroom.

      The agents talked to Seanez’s 12-year-old daughter, one of his nine

children, who informed the agents that she had helped her father load marijuana

into the boat. The agents tested the green leafy substance inside the recovered

bundles and confirmed that the substance was marijuana. A total net weight of

231.2 kilograms of marijuana was discovered.

      According to Lopez-Pinedo’s post-arrest statement, Seanez hired him to

install a false compartment in the boat for $1,000. Lopez-Pinedo corroborated the

informant’s information by stating that the boat was supposed to be towed to an

undisclosed location on October 25, 2005, and added that a man named “Daniel”

was hired by “Homie” (Seanez) to tow the boat. Lopez-Pinedo further noted that

Seanez had picked up the marijuana on October 23, 2005, in El Paso, Texas, and

had transported the drugs to his residence, where he stored them, until moving the

drugs onto the boat. Seanez provided little in the way of a post-arrest statement

except, “[t]hat’s the way the game is played.” R. vol. I, Presentence Investigation

Report (PSR) ¶ 14. He maintained that his name was A rturo Cisneros until

fingerprinting revealed his true identity as Sergio Seanez.

      On January 18, 2006, a two count Indictment was filed in the United States

District Court for the District of New M exico. Seanez pleaded guilty to both

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counts as charged on M arch 30, 2006. A Presentence Investigation Report

(“PSR”) was then prepared, recommending several sentencing enhancements

under the Guidelines. Specifically, the PSR included a two-level enhancement for

possession of a dangerous weapon; a two-level enhancement for his role as an

organizer, leader and manager of the drug operation; and a two-level enhancement

for using a minor, his 12-year-old daughter, to commit the offense. See generally

U.S.S.G. §§ 2D1.1(b)(1)(possession of a dangerous w eapon), 3B1.1(c)(leadership

role), 3B1.4 (using a minor). In July of 2006, Seanez filed objections to all three

enhancements. The Probation Office prepared a PSR addendum that noted and

responded to the objections.

      At Seanez’s sentencing on August 23, 2006, the district court accepted the

PSR ’s recommendations, which left Seanez with an offense level of 29, and a

criminal history category II. The recommended guideline imprisonment range

was 97 to 121 months. Seanez was sentenced to 97 months on each count, to be

served concurrently. He now appeals, asserting that the district court erred in

imposing these enhancements.

                                   II. Discussion

      “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 (10 th

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Cir. 2006) (internal quotation marks omitted; quoting United States v. M artinez,

418 F.3d 1130, 1133 (10 th Cir. 2005)). The government bears the burden of

proving sentencing enhancements by a preponderance of the evidence. See, e.g.,

United States v. Kirk, 894 F.2d 1162, 1164 (10 th Cir. 1990). The court’s ultimate

sentencing decision is reviewed for reasonableness.   See United States v. Kristl,

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

                           A. Possession of a Firearm

      Seanez challenges the two-level enhancement for possession of a dangerous

weapon. See U.S.S.G. § 2D1.1(b)(1). Seanez argues that the mere presence of a

firearm does not trigger the two-level increase. Seanez also emphasizes that the

gun was unloaded and not mentioned by the informant.

      Our precedent demonstrates that § 2D1.1(b)(1) applies if the government

can prove by a preponderance of the evidence that a weapon w as 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 (10 th Cir. 2004). 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 (10 th Cir. 1997), cert. denied, 522 U.S. 1141

(1998). The government can meet its burden of demonstrating possession by

showing “that a temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” Zavalza-Rodriguez, 379 F.3d at

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1185 (internal quotation marks omitted; quoting United States v. Pompey, 264

F.3d 1176, 1180 (10 th Cir. 2001)); see United States v. W illiams, 431 F.3d 1234,

1237 (10 th Cir. 2005). That means the government need only show the dangerous

weapon was located in the general vicinity of where part of the drug activity

occurred. See United States v. Alexander, 292 F.3d 1226, 1229, 1231 (10 th Cir.

2002). If such possession is established, then the burden shifts to the defendant to

show that “it is clearly improbable the weapon was connected with the offense.”

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

      In this instance, the government offered proof of possession sufficient to

trigger the two-level enhancement by showing that Seanez had both the drugs and

the gun easily accessible inside his residence, which he described as a “two-

bedroom mobile home trailer.” See R. vol. III, at 6. Consequently, there was

proximity between the drugs and the gun. Seanez has pointed to no credible

evidence to demonstrate it is clearly improbable that the gun was connected to his

drug trafficking activity. Seanez does not challenge that the gun is his; and,

indeed, he concedes that evidence links the drugs to his home where the gun was

found. Aplt. Br. at 12 (“W hile there is some evidence that the packages of

marijuana had been stored for less than one day in M r. Seanez’s house, there is no

evidence that the marijuana was stored in the master bedroom.”).

      Nothing in our case law or the Guidelines require that the drugs and gun be

found in the same room of a residence. Despite Seanez’s objections, the facts of

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this case directly implicate the concerns that the Guidelines enhancement was

designed to address. See U.S.S.G. § 2D1.1 cmt. n.3 (“The enhancement for

weapon possession reflects the increased danger of violence when drug traffickers

possess weapons.”). The Guidelines do not distinguish between a loaded or

unloaded weapon. Neither should we: both can cause fear and escalate the danger

associated with a drug enterprise. Seanez has not offered us any reason to believe

that the firearm was unconnected to his criminal conduct. W e conclude that the

government satisfied its burden as to the two-level enhancement for firearm

possession.

                                B. Leadership Role

      Seanez challenges the two-level upward adjustment for being “an organizer,

leader, [and] manager” of the marijuana distribution scheme. See U.S.S.G. §

3B1.1(c). He asserts that the evidence is insufficient to support the increase

because the only evidence accusing Seanez of holding a leadership role comes

from individuals who are motivated to place the blame elsewhere. Aplt. Br. at 16.

In fact, Seanez claims that as far as the informant knew “Flaco” could have been

“Homie’s” boss. Id. at 15. W e disagree.

      The Guidelines call for the enhancement “[i]f the defendant was an

organizer, leader, manager, or supervisor.” U.S.S.G. § 3B1.1(c). The Guidelines

comm entary “delineates factors to be considered by a sentencing court when

evaluating whether a defendant is an organizer or leader.” United States v. Suitor,

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253 F.3d 1206, 1210 (10 th Cir. 2001). They include the nature of a defendant’s

participation in the offense, and, more specifically, the extent to which the

defendant exercised decision-making authority, planned and organized the

offense, recruited accomplices, and exhibited control and authority over others.

See U.S.S.G. § 3B1.1 cmt. n.4. M ore than one person involved in a “criminal

association or conspiracy” can qualify for the enhancement (e.g., there can be

more than one leader of a criminal conspiracy). Id. A defendant’s sphere of

influence, however, need not be extensive; he may operate in this heightened

capacity as to “one or more other participants.” Id. at cmt. n.2 (emphasis added).

      Two sources independently pointed to Seanez as the leader, organizer, and

manager of the drug trafficking. W hile a confidential informant’s credibility

should be carefully scrutinized, the informant’s information proved to be quite

accurate. In significant respects, the information was consistent with the agents’

observations at Seanez’s residence and the subsequent adm issions of Seanez’s

accomplice, Lopez-Pinedo.

      It is readily apparent from Lopez-Pinedo’s statement to the agents that

Seanez recruited Lopez-Pinedo to assist Seanez in concealing the marijuana; that

Seanez was the person who was going to pay Lopez-Pinedo for his work; and that

Seanez also had recruited and agreed to pay another individual who was given the

task of transporting the marijuana. Furthermore, Seanez exercised ultimate

control over the subject matter of the criminal enterprise. The marijuana was

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being stored at Seanez’s home and was being concealed in a boat on his property.

      In sum, we have no evidence suggesting that Seanez was anything other

than a leader, organizer, and manager in this criminal conspiracy. The district

court did not err in finding the § 3B1.1(c) enhancement to be appropriate.

                                 C. Use of a M inor

      Finally, Seanez objects to the sentence enhancement for using a minor in

his criminal activity. The G uidelines require a two-level upward adjustment “[i]f

the defendant used or attempted to use a person less than eighteen years of age to

comm it the offense or assist in avoiding detection of, or apprehension for, the

offense.” See U.S.S.G. § 3B1.4. This enhancement is applicable when a

defendant affirmatively directs, trains, intimidates, or encourages a minor to

participate in the crime. Id. at cmt. n.1; see Suitor, 253 F.3d at 1210.

      According to the PSR, Seanez’s 12-year-old daughter told agents searching

the family’s residence that she had helped her father load marijuana into the boat.

W hen he filed his PSR objections, Seanez put forward a sw orn affidavit of his

daughter, dated July 27, 2006, in w hich she claimed to have “never admitted to

any law enforcement officer that I helped my father load the marijuana in the

boat,” and, as a factual matter, she denied ever engaging in such loading “at my

father’s direction.” Doc. 45, Attachment A, ¶ 4.

      Although Seanez correctly identifies a weakness in the government’s proof

concerning this enhancement, ultimately we conclude that the district court did

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not err in finding that the government carried its burden. In particular, record

evidence supports the court’s factual findings concerning the statement of

Seanez’s daughter.

      On the one hand, the district court had the agents’ statement reported in the

PSR (a statement the agents did not disavow) that at the time of the arrest,

Seanez’s daughter told them she assisted her father in loading marijuana onto the

boat. And, on the other hand, it had a sworn affidavit of the daughter given

approximately 10 months after the events at issue in which she denied making the

statement to the agents. W e cannot conclude that the district court clearly erred in

crediting the first statement. It was reported by federal agents presumably

engaged in the ordinary course of their duties and was represented by them as

being uttered at the time of the events at issue, when one might reasonably expect

that the daughter’s memory would be better than at the time she produced the

affidavit. Significantly, the first statement also reportedly was made by the

daughter before she had an opportunity to seriously consider the consequences of

providing information that was contrary to her father’s interests.

      The district court was not required to shelve its common sense and worldly

knowledge, especially concerning the tensions and motivations that underlie

human conduct, in deciding, on balance, which statement of the daughter to




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believe. 2 Indeed, the district court emphasized the importance of the timing of the

daughter’s statement when deciding to employ the § 3B1.4 enhancement. See R.

vol. III, at 5 (where the court inquired at the sentencing hearing if the daughter

gave the statement at the time of the arrest and, upon receiving confirmation of

that fact, noted “[t]hat’s good enough for me”). Accordingly, we discern no clear

error in the district court’s fact-finding concerning this enhancement.

                                  III. Conclusion

      W e conclude that the district court’s factual findings regarding the disputed

Guidelines enhancements were supported by the record and, therefore, it did not

clearly err. Furthermore, Seanez’s conduct fit squarely into the plain language of

the applicable Guidelines. Accordingly, we AFFIRM the sentence.



                                       Entered for the Court



                                       Jerome A. Holmes
                                       Circuit Judge




      2
             In affirming a district court’s imposition of an obstruction-of-justice
enhancement in an unpublished opinion, we expressed similar thoughts, noting
that the court “in applying knowledge of the ways of the world and the
application of common sense” could permissibly find that defendant’s testimony
regarding his knowledge of a weapon was “too preposterous for belief.” United
States v. Bolden, 23 Fed. App’x 900, 905 (10 th Cir. 2001).

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