                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 10 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                           No. 99-6004
v.                                                   (W. District of Oklahoma)
                                                       (D.C. No. 98-CR-112)
RAMON AQUILAR,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, ANDERSON, and MURPHY, Circuit Judges.


      Appellant, Ramon Aguilar,     1
                                        appeals from the sentence imposed by the

district court following his conviction for conspiring to distribute cocaine.

Aguilar contends the district court erroneously enhanced his sentence by two

levels under United States Sentencing Guidelines § 2D1.1(b)(1) for possession of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      1
        Although Aguilar’s name is spelled “Aquilar” in the case caption, it is
spelled “Aguilar” both in his appellate brief and in the indictment. This court
will refer to him in the body of this opinion as “Aguilar.”
a dangerous weapon during the commission of the drug offense. Aguilar also

argues the district court failed to make adequate factual finding on his objections

to the Presentence Report (“PSR”). Exercising jurisdiction pursuant to 28 U.S.C

§ 1291 and 18 U.S.C. § 3742(a)(2), this court   affirms . We nevertheless remand

to the district court to complete the ministerial task of reducing its oral findings

on Aguilar’s objections to the § 2D1.1 enhancement to writing and attaching

them to the PSR.

I.    Factual Background

      Aguilar was named in two counts of a four-count indictment. Aguilar’s co-

defendants were identified in the indictment as Modesto Sicairos, Jose Patron-

Montano, and Normal Aguirre. The charges against Aguilar and his co-

defendants stemmed from an investigation of Patron-Montano conducted by the

Drug Enforcement Agency and the Oklahoma City Police Department.

      During a May 28, 1998 meeting with Patron-Montano and Aguirre, an

undercover officer showed Patron-Montano $185,000 in cash and indicated his

interest in purchasing ten kilos of cocaine that night. Patron-Montano stated he

did not know if he could obtain ten kilos but he was confident he could get five

kilos. After the meeting disbanded, a confidential source paged Patron-Montano

and informed him the undercover officer would pay $19,000 per kilo if Patron-

Montano could supply at least five kilos.


                                          -2-
       Later that day, Patron-Montano contacted the confidential source and told

him that he had obtained the five kilos. Patron-Montano further indicated he

wanted to conduct the transaction at his residence. After speaking with the

undercover officer, the confidential source telephoned Patron-Montano and

informed him that the buyer wanted the transaction to be completed in a public

place. Patron-Montano continued to insist that the transaction take place at his

residence. Several telephone calls were made between Patron-Montano, the

confidential source, and the undercover officer but the parties were unable to

agree on a location. During one of these telephone calls, Patron-Montano

advised the confidential source that the suppliers had arrived at the residence and

suggested the transaction could be conducted outside in his yard. When the

undercover officer refused to meet at Patron-Montano’s residence, Patron-

Montano told the confidential source the suppliers were angry and were leaving

the residence.

      During the course of the telephone calls between Patron-Montano, the

confidential source, and the undercover officer, surveillance officers observed a

vehicle arrive at Patron-Montano’s residence. When the vehicle left the

residence, officers in a marked police car followed it. A traffic stop was initiated

and the officers observed the driver of the vehicle make furtive gestures toward




                                         -3-
the floorboard area. It was later determined that Aguilar’s co-defendant,

Modesto Sicairos, was the driver of the vehicle, and Aguilar the passenger.

      Sicairos consented to a search of the vehicle. During the search, officers

discovered a semi-automatic pistol under the edge of the driver’s seat. Two

cellular telephones, a pager, and an address book were also found in the vehicle

and Sicairos was in possession of $1458 in U.S. currency. A drug-detection dog

alerted to the trunk of the vehicle where officers found a cardboard box

containing four packages of cocaine with a net weight of 3993 grams. During a

presentence interview, Aguilar admitted he knew there were drugs in the vehicle

but denied any knowledge of the gun.

      Count 1 of the indictment charged Aguilar with conspiracy to distribute

and possess with intent to distribute a mixture or substance containing a

detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. Count

2 charged that on May 28, 1998, Aguilar and Sicairos possessed with intent to

distribute approximately four kilos of a mixture or substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). In exchange

for his plea of guilty to Count 1, the charge against Aguilar contained in Count 2

was dismissed. The PSR computed Aguilar’s total offense level at thirty-two and

his criminal history category at II. This computation included a two level

increase to the base offense level because Aguilar possessed a dangerous weapon


                                        -4-
during the commission of the drug offense. The computation did not include a

decrease to the base offense level for acceptance of responsibility.

      Aguilar objected to both the two-level increase for the firearm possession

and the lack of a decrease for acceptance of responsibility. At sentencing, the

district court sustained one of Aguilar’s objections and granted him a two-level

decrease for acceptance of responsibility. The court, however, denied Aguilar’s

objection to the two-level increase for possession of the firearm during the

commission of a drug offense under USSG § 2D1.1(b)(1). Aguilar’s base offense

level was adjusted to level thirty and he was sentenced to 125 months’

imprisonment and four years of supervised release. Aguilar then filed this

appeal, contending the district court erred when it increased his base offense

level by two levels under USSG § 2D1.1(b)(1). Aguilar also claims the district

court failed to make adequate findings on his objections to the PSR.

II.   DISCUSSION

      A.     Standard of Review

      This court reviews the factual findings made by a sentencing court for clear

error. See United States v. Roberts   , 980 F.2d 645, 647 (10th Cir. 1992). Under

this standard, this court will not reverse the district court “unless the court’s

finding was without factual support in the record, or if after reviewing all the

evidence we are left with the definite and firm conviction that a mistake has been


                                          -5-
made.” United States v. Beaulieu , 900 F.2d 1537, 1540 (10th Cir. 1990). A

district court’s legal interpretation of the sentencing guidelines is reviewed    de

novo . See Roberts , 980 F.2d at 647.

       B.     Two-Level Enhancement

       USSG § 2D1.1(b)(1) calls for a two-level increase in the base offense level

of a defendant charged with a drug offense “[i]f a dangerous weapon (including a

firearm) was possessed” during the commission of the offense. This court has

held that the § 2D1.1(b)(1) enhancement is appropriate if the government is able

to show by a preponderance of the evidence that “a temporal and spacial relation

existed between the weapon, the drug trafficking activity, and the defendant.”

United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993) (quotation omitted).

       A co-defendant’s possession of a dangerous weapon may be attributed to a

defendant if the possession of the weapon was known to the defendant or

reasonably foreseeable by him.      See United States v. McFarlane      , 933 F.2d 898,

899 (10th Cir. 1991) . Once possession is established, the enhancement should be

applied unless the defendant is able to show that “it is clearly improbable that the

weapon was related to the offense.”       United States v. Robertson , 45 F.3d 1423,

1449 (10th Cir. 1995) (quotation omitted).

       Here, the government has shown that the gun was located in the same

vehicle in which the drugs were discovered. Additionally, the government has


                                             -6-
introduced evidence from which it could easily be inferred that Sicairos actually

handled the gun as he attempted to hide it under the front seat of the vehicle.

Thus, the government has clearly shown that Sicairos possessed the gun. Aguilar

does not argue, however, that the evidence fails to establish that Sicairos

possessed the gun. Neither does Aguilar argue that it was clearly improbable that

the gun was connected to the offense. Instead, Aguilar argues that Sicairos’

possession should not be attributed to him because he had no actual knowledge

of the gun and the possession of the gun was not reasonably forseeable to him.    2



      The district court, after considering Aguilar’s objection to the PRS,

concluded that Aguilar had actual knowledge of Sicairos’ possession of the

firearm. In reaching this conclusion, the court relied on the evidence presented at

the sentencing hearing that Sicairos was observed making furtive motions toward

the floorboard of the vehicle after the traffic stop was initiated. The evidence

also included testimony that the firearm was found under the driver’s seat. From

this evidence, it could reasonably be concluded that what the officers observed

was Sicairos placing the gun under the front seat of the vehicle. The district

court then inferred that Sicairos would not have attempted to hide the gun under

the seat unless it was otherwise in plain view. The district court further inferred


      2
       In light of our conclusion, infra, that the district court did not err when it
concluded Aguilar had actual knowledge of the firearm, it is unnecessary for us to
address the question of whether Sicairos’ possession was reasonably forseeable

                                           -7-
that Aguilar must have known of the existence of the weapon because he was

seated next to Sicairos while Sicairos placed the gun under the seat.

      Aguilar’s only response to the evidence presented is to repeatedly deny that

he had actual knowledge of the gun. Aguilar’s denial, however, is belied by the

evidence presented at the sentencing hearing. The district court’s finding of

actual knowledge was amply supported by evidence in the record that Aguilar

was seated immediately to the right of Sicairos as Sicairos attempted to place the

gun under the front seat of the vehicle. Thus, although Aguilar denies having

actual knowledge of the firearm, the district court’s finding of actual knowledge

was not clearly erroneous in light of the evidence presented at the sentencing

hearing. The district court did not err when it attributed Sicairos’ possession to

Aguilar and properly enhanced Aguilar’s sentence under USSG § 2D1.1(b)(1).

      C.     Objections to the PSR

      The PSR, prepared on September 18, 1998, recommended that Aguilar’s

sentence be enhanced two levels pursuant to USSG § 2D1.1(b)(1). Aguilar filed

objections to the PSR on October 15, 1998 challenging, in part, the § 2D1.1(b)(1)

enhancement. In response to Aguilar’s objections, an addendum was prepared

and attached to the PSR. The response provided justifications for the imposition

of the § 2D1.1(b)(1) enhancement, and stated, in part, “The defendant was

observed bending over the front seat of the vehicle prior to the arrest.” At the


                                         -8-
sentencing hearing, Aguilar challenged the statement noting that, “[a]ll of the

reports . . . show that Mr. Sicairos . . . was bending over the seat and apparently

trying to hide a gun. . . . they are trying now to show that it was [Aguilar who]

was doing that, which is contrary to all of the reports that have ever been

written.” On appeal, Aguilar argues the district court failed to make adequate

findings on his objections to the PSR as required by Fed. R. Crim. P. 32(c)(1).   3



      Rule 32(c)(1) provides, in part, that when a party objects to a matter

contained in the presentence report, “the court must make either a finding on the

allegation or a determination that no finding is necessary because the

controverted matter will not be taken into account in, or will not affect,

sentencing.” Rule 32(c)(1) also provides that “a written record of these findings

and determinations must be appended to any copy of the presentence report made

available to the bureau of prisons.”

      Aguilar’s argument that the district court failed to make adequate findings

lacks merit. It is clear from the record that the district court considered Aguilar’s

contention that the response to his written objection contained a factual

inaccuracy. The undercover officer testified at the sentencing hearing and

confirmed Aguilar’s position that the statement in the PSR was factually


      3
       In his opening brief, Aguilar relies on Fed. R. Crim. P. 32(c)(3)(D) to
support his argument. Aguilar acknowledges in his reply brief that Rule
32(c)(3)(D) has been superceded by Fed. R. Crim. P. 32(c)(1).

                                           -9-
erroneous. Prior to overruling Aguilar’s objection to the § 2D1.1(b)(1)

enhancement, the district court stated, “even though it was not Mr. Aguilar who

was observed making the furtive motion of what appeared to be stuffing the gun

under the seat, he was right there in the front seat, the gun was within reach . . .

.” It is clear from the court’s statement that it accepted Aguilar’s contention that

the PSR erroneously stated that Aguilar was seen bending over the front seat of

the vehicle. This statement makes it equally clear that the district court

considered Aguilar’s objections to the PSR but nevertheless concluded that

Aguilar’s actual knowledge of the possession of the gun could be inferred from

the evidence presented at the sentencing hearing, thus, overruling Aguilar’s

written objections to the § 2D.1.1(b)(1) enhancement. Aguilar’s argument that

the district court erred by failing to made adequate findings as required by Rule

32(c)(1) thus fails.

       Aguilar, however, correctly asserts that the district court was obligated

under Rule 32(c)(1) to reduce its factual findings to writing and append them to

the PSR. The government concedes that the district court has failed to append

these findings to the PSR. Thus, we remand to the district court with instructions

to reduce its findings to writing and attach them to the PSR.

III.   CONCLUSION




                                          -10-
      The sentence imposed by the district court is   affirmed . Although this

court concludes that the substance of Aguilar’s Rule 32(c)(1) claim is without

merit, the district court committed a technical error when it failed to append to

the PSR written findings on Aguilar’s objections to the § 2D1.1 enhancement.

We remand to the district court with instruction to complete the ministerial task

of reducing its oral findings on Aguilar’s objections to the § 2D1.1 enhancement

to writing and attaching them to the PSR.

                                                 ENTERED FOR THE COURT:



                                                 Michael R. Murphy
                                                 Circuit Judge




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