                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           May 3, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1324
          v.                                           (D. Colorado)
 ARNOLDO GUTIERREZ-AYALA,                       (D.C. No. 03-CR-221-WYD)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, 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.




      *
       This order and judgment is not binding precedent, except under the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.
      Arnoldo Gutierrez-Ayala pled guilty to one count of conspiracy to possess

with intent to distribute more than fifty grams of a mixture or substance

containing a detectable amount of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), and 846. He was sentenced to 87 months’ imprisonment,

followed by four years of supervised release. He appeals his sentence, arguing

that the district court erred in applying a firearm enhancement pursuant to United

States Sentencing Commission, Guidelines Manual (“USSG”), §2D1.1(b)(1) (Nov.

2003). For the reasons set forth below, we affirm.



                                 BACKGROUND

      Between November 2002 and April 2003, an individual working as an

informant for the Drug Enforcement Administration (“DEA”) made several

controlled purchases from Gutierrez-Ayala, involving a total of approximately

four pounds of methamphetamine. The first of these transactions took place on

November 5 at Gutierrez-Ayala’s residence. The informant wore a wire during

the transaction and was debriefed afterwards by DEA agents. According to the

later testimony of one of these agents, the informant related that the transaction

took place in the garage area and that while he and Gutierrez-Ayala were talking,

Gutierrez-Ayala “went to a toolbox within the garage and brought to him wrapped

in a red towel a [black] .45 caliber handgun” with wood grips. Tr. of Sentencing


                                         -2-
Day 2 at 30, 52, R. Vol. VI. Gutierrez-Ayala “told the [informant] that he had

purchased the gun at a local gun show and . . . that he had had other weapons.”

Id. at 30. According to the agent’s testimony, in conjunction with showing the

informant the gun, Gutierrez-Ayala also described a difficulty he had had with an

associate who had not yet paid for the methamphetamine he had bought, and

indicated “that he was going to hurt this associate.” Id. at 31.

      During the execution of a search warrant in April 2003, approximately

fifteen firearms, including a black .45 caliber handgun with wood grips, were

seized from a locked gun safe at Gutierrez-Ayala’s residence. According to the

DEA agent’s testimony, the informant identified this .45 handgun as the gun he

had been shown in the November 5 transaction. In a superseding indictment,

Gutierrez-Ayala was charged with two counts involving methamphetamine

distribution. In return for the dismissal of the indictment, he pled guilty to a one-

count information, as indicated above.

      Following Gutierrez-Ayala’s guilty plea, the United States Probation Office

prepared a Presentence Report (“PSR”), which calculated a sentencing range

according to the Guidelines. The PSR calculated a total offense level of 35,

which, together with a criminal history category of I, yielded a sentencing range

of 168 to 210 months’ imprisonment. The PSR included a two-level enhancement

to the offense level pursuant to USSG §2D1.1(b)(1), based on Gutierrez-Ayala’s


                                          -3-
possession of a firearm during the November 5 transaction with the informant,

and a two-level enhancement pursuant to USSG §3B1.1(c), based on Gutierrez-

Ayala’s role as a leader or organizer in the conspiracy. Gutierrez-Ayala objected

to both of these enhancements.

      Responding to a motion by Gutierrez-Ayala, the district court deferred

sentencing until the Supreme Court issued its decision in United States v. Booker,

543 U.S. 220 (2005). The court then held a sentencing hearing to consider

Gutierrez-Ayala’s objection. The DEA agent testified as described above, and

further indicated that the informant was not himself facing a criminal charge or

under investigation at the time he provided assistance, though he had previously

been a target of a DEA investigation. After hearing this testimony and counsels’

arguments, the court disallowed the enhancement under §3B1.1(c) but upheld the

enhancement under §2D1.1(b)(1). The court “f[ou]nd . . . credible [the DEA

agent]’s testimony,” and stated that it

      believe[d] that . . . as a part of the [November 5] transaction the
      [informant] saw a .45 caliber handgun that was displayed by
      Gutierrez-Ayala, and . . . coupled with the fact that when a search
      warrant was executed on [Gutierrez-Ayala]’s home, 14 weapons were
      found, so the Court finds that there’s an adequate record to justify
      the gun enhancement.

Tr. of Sentencing Day 2 at 62, R. Vol. VI. The court also granted the

government’s motion for a three-level reduction pursuant to USSG §5K1.1 for

substantial assistance, and added an additional one-level reduction, leading to a

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guideline sentencing range of 87 to 108 months. Taking into account the factors

listed in 18 U.S.C. § 3553(a), the court sentenced Gutierrez-Ayala to the low end

of that range. Gutierrez-Ayala appealed his sentence, challenging only the

applicability of the firearm enhancement under USSG §2D1.1(b)(1).



                                  DISCUSSION

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

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

Amendment” and thus rendered the Guidelines advisory rather than mandatory.

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). The

advisory Guidelines remain “a factor to be considered in imposing a sentence.”

Id. Thus, district courts “‘must consult those Guidelines and take them into

account when sentencing.’” Id. (quoting Booker, 543 U.S. at 264).

      On appeal, while we review a defendant’s ultimate sentence for

reasonableness, we continue to review the district court’s application of the

Guidelines de novo, and we review any factual findings for clear error. Id. at

1054. Where the district court correctly applies the Guidelines and imposes a

sentence within the applicable Guidelines range, that sentence “is entitled to a

rebuttable presumption of reasonableness.” Id. However, if the district court errs




                                        -5-
in applying the Guidelines, we must remand unless the error is harmless. Id. at

1055.

        As indicated, Gutierrez argues on appeal that the district court erred in

ruling that the USSG §2D1.1(b)(1) enhancement for possession of a firearm was

applicable in this case. The provision directs that a two-level increase be imposed

“[i]f a dangerous weapon (including a firearm) was possessed.” USSG

§2D1.1(b)(1). The commentary to this section indicates that this enhancement

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

and that it “should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” USSG §2D1.1,

comment. (n.3).

        In imposing this enhancement, the government “bears the initial burden of

proving possession of the weapon by a preponderance of the evidence.” United

States v. Williams, 431 F.3d 1234, 1237 (10th Cir. 2005), cert. denied, 74

U.S.L.W. 3586 (U.S. Apr. 17, 2006) (No. 05-9895). This burden may be satisfied

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

the drug trafficking activity, and the defendant.’” Id. (quoting United States v.

Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001) (internal quotation omitted)). If

the government succeeds in meeting this burden, “‘the burden shifts to the

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


                                           -6-
the offense.’” Id. (quoting Pompey, 264 F.3d at 1181 (internal quotation

omitted)).

      Gutierrez-Ayala concedes that “if he had displayed a weapon to [the

informant] during the [November 5] drug transaction, imposition of the firearm

enhancement would be appropriate.” Appellant’s Reply Br. at 2. However, he

argues that there was insufficient proof that he did display the weapon at that time

because the government failed to introduce either the informant himself or the

wire recording of the November 5 transaction at the sentencing hearing.

According to Gutierrez-Ayala, the absence of the informant or the recording is

fatal to the validity of the §2D1.1(b)(1) enhancement because the credibility of

the informant, who provided the only evidence that a firearm had been present at

the November 5 transaction, was “the critical issue.” Appellant’s Op. Br. at 14.

In contrast, Gutierrez-Ayala states, the credibility of the DEA agent who testified

is “not particularly relevant.” Id. at 13. Gutierrez-Ayala further argues that the

court’s application of the §2D1.1(b)(1) enhancement was inconsistent with its

rejection of the §3B1.1(c) enhancement, as the same DEA agent testified for

purposes of both enhancements.

      We disagree with Gutierrez-Ayala’s assertions regarding the nature of the

government’s evidence. A sentencing court “may consider hearsay evidence

provided that the evidence has sufficient indicia of reliability,” and use of such


                                         -7-
evidence, by itself, is insufficient to render a sentencing enhancement invalid.

United States v. Dazey, 403 F.3d 1147, 1177 n.7 (10th Cir. 2005); see also United

States v. Espinoza, 338 F.3d 1140, 1152 (10th Cir. 2003). Thus, the

government’s failure to introduce the informant or the wire recording is not fatal.

The issue is whether the hearsay evidence offered by the DEA agent has sufficient

evidence of reliability.

      Here, the account of the DEA agent, whom the district court deemed

credible, provides details that adequately corroborate the informant’s hearsay

statements. Most significantly, the informant first told DEA agents that

Gutierrez-Ayala displayed a gun when the informant was debriefed, shortly after

the November 5 transaction occurred, and described the gun at that time. The

timing of this first mention of the gun undermines Gutierrez-Ayala’s speculation

that the informant “may have seen that gun on a different occasion, and fabricated

that he saw the gun during the drug transaction.” Appellant’s Reply Br. at 3. A

gun matching the informant’s description was then found at Gutierrez-Ayala’s

residence, and the informant identified it then as the gun he had previously seen.

      We also disagree that there is any inconsistency in the court’s rejection of a

§3B1.1(c) enhancement while applying a §2D1.1(b)(1) enhancement. In rejecting

the former enhancement, the court did not state that it considered the hearsay

testimony in regard to that enhancement unreliable. The court merely found that


                                         -8-
it “c[ouldn]’t tell from the testimony . . . who the leader or the follower was.” Tr.

of Sentencing Day 2 at 56, R. Vol. VI.

      We agree with the district court that the hearsay evidence offered by the

government was sufficiently reliable. The court’s consequent finding that

Gutierrez-Ayala displayed a weapon during the November 5 methamphetamine

transaction is not clearly erroneous. We therefore uphold the court’s application

of §2D1.1(b)(1). As Gutierrez-Ayala offers no other basis for holding his

sentence unreasonable, we affirm his sentence. 1



                                  CONCLUSION

      For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge


      1
        Although Gutierrez-Ayala does not raise the issue, we note that the court’s
reliance on judge-found facts in applying the §2D1.1(b)(1) enhancement does not
violate the Sixth Amendment because the finding “‘did not increase [Gutierrez-
Ayala’s] sentence beyond the maximum authorized by the facts’ admitted by him
in his plea agreement.” Williams, 431 F.3d at 1239-40 (quoting Dazey, 403 F.3d
at 1174); cf. United States v. Clark, 415 F.3d 1234, 1239 (10th Cir. 2005); United
States v. Johnson, 414 F.3d 1260, 1263 (10th Cir. 2005); United States v. Hauk,
412 F.3d 1179, 1193 (10th Cir. 2005). Gutierrez-Ayala’s sentence of 87 months
remains within the Guideline sentencing range, for an offense level of 27, of 70 to
87 months that would apply in the absence of the two-level §2D1.1(b)(1)
enhancement. See USSG Ch. 5, Pt. A.

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