                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         June 9, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 09-1462
                                                  (D. Ct. No. 1:08-CR-00519-REB-1)
 ISMAEL DOMINGUEZ,                                             (D. Colo.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, CUDAHY,† and TACHA, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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-appellant Ismael Dominguez pleaded guilty to possession of a firearm

by a prohibited person in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) and possession

of methamphetamine in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C). He was

       *
        This order and judgment is not binding precedent except under the doctrines of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.
       †
      Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of
Appeals for the Seventh Circuit, sitting by designation.
sentenced to 92 months’ imprisonment. Mr. Dominguez maintains his sentence is

procedurally unreasonable because the district court improperly applied the offense level

enhancement for possession of a firearm in connection with another felony under United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2K2.1(b)(6). He also

alleges the district court failed to make specific findings at sentencing as required by Fed.

R. Crim. P. 32. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                    I. BACKGROUND

       In early 2008, special agents with the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) began investigating Mr. Dominguez after a confidential informant

(“CI”) informed them that Mr. Dominguez illegally possessed firearms. The CI

subsequently arranged several meetings with Mr. Dominguez to discuss and purchase

firearms and narcotics.

       On April 25, 2008, the CI made a controlled purchase of 1.7 grams of

methamphetamine from Mr. Dominguez in Evans, Colorado. Then, on May 7, the CI

purchased a .41 caliber revolver from Mr. Dominguez while ATF special agents

conducted electronic surveillance. During the May 7 sale, the CI asked Mr. Dominguez

about purchasing more methamphetamine, and Mr. Dominguez responded that “real good

stuff came in” but that it would take a while for him to get it.

       On July 2, the CI and ATF Special Agent Mark Feltz traveled to an apartment

complex parking lot to purchase another firearm and methamphetamine from Mr.

Dominguez. Agent Feltz remained in the car while the CI joined Mr. Dominguez in

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another vehicle. The CI eventually rejoined Agent Feltz having purchased 1.4 grams of

methamphetamine. He also told Agent Feltz that Mr. Dominguez had a “strap” (i.e., a

firearm) sitting next to him in the car. Mr. Dominguez told the CI he was nervous about

selling the firearm because a resident of the apartment complex was watching him. Later,

during Mr. Dominguez’s sentencing hearing, the district court would hear testimony from

another special agent who had discussed this transaction with the CI.

       On January 2, 2009, Mr. Dominguez was charged in an eight-count superseding

indictment with weapons and drug violations. Pursuant to a plea agreement, Mr.

Dominguez pleaded guilty to one count of being a felon in possession of a firearm (the

May 7 transaction) and one count of possession with intent to distribute

methamphetamine (the April 25 transaction); all other counts were dismissed. The

probation office prepared a Presentence Investigation Report (“PSR”), recommending a

four-level increase in Mr. Dominguez’s offense level pursuant to U.S.S.G. § 2K2.1(b)(6).

The PSR author based the recommendation on the CI’s report that he saw a firearm in Mr.

Dominguez’s possession during the July 2 purchase of methamphetamine1 and on an

alleged statement by Mr. Dominguez to the CI during the April 25 sale of drugs that he

was “always armed.”

       Mr. Dominguez objected to the recommended four-level enhancement. He did not

dispute that he had the firearm with him on July 2, nor did he dispute that he told the CI

       1
        Although Mr. Dominguez did not plead guilty to, and was not convicted of, the
July 2 transaction, he does not dispute that it was properly considered by the district court
during sentencing as “relevant conduct” under U.S.S.G. § 1B1.3.

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he was “always armed.” Rather, he argued that on July 2 he did not possess the firearm

“in connection with” the sale of methamphetamine. He contended that he brought the

weapon at the CI’s request to barter its sale and that the firearm was not intended to

facilitate the methamphetamine transaction.

       At sentencing, the district court heard testimony from ATF Special Agent Shane

Messner regarding the reliability of the CI and his statements to Agent Messner about the

July 2 sale of drugs and the gun that Mr. Dominguez possessed at that time. Based on

Agent Messner’s testimony, the court overruled Mr. Dominguez’s objection to the §

2K2.1(b)(6) enhancement, stating that “on July 2, 2008, the defendant possessed a .357

caliber revolver during and in connection with the drug-related felony offense.”

Ultimately, the district court sentenced Mr. Dominguez to 92 months’ imprisonment.

       Mr. Dominguez now appeals, contending that the district court improperly applied

the four-level enhancement when calculating his sentence and failed to make findings as

required under Fed. R. Crim. P. 32.

                                      II. DISCUSSION

A.     Enhancement for Firearm Possession in Connection with Another Felony

       On appeal, Mr. Dominguez argues that his sentence is procedurally unreasonable

because the district court erred in increasing his base offense level pursuant to §

2K2.1(b)(6). A sentence is procedurally unreasonable if the district court improperly

calculates the applicable Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).

In determining whether the district court properly applied the challenged enhancement,

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we review the district court’s legal conclusions de novo and its factual findings for clear

error. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). “[I]n reviewing the

court’s decision to apply an enhancement, we view the evidence and inferences therefrom

in the light most favorable to the district court’s determination.” United States v. Beltran,

571 F.3d 1013, 1020 (10th Cir. 2009) (quotations omitted).

       A four-level enhancement is appropriate under § 2K2.1(b)(6) “[i]f the defendant

used or possessed any firearm or ammunition in connection with another felony offense.”

The commentary to § 2K2.1 clarifies the meaning of “in connection with.”2 Application

Note 14 states that the enhancement applies “if the firearm or ammunition facilitated, or

had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1 cmt. 14(A).

Moreover, when the other felony offense is a drug offense, the provision applies if “a

firearm is found in close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia.” Id. cmt. 14(B); see also United States v. Bunner, 134 F.3d 1000, 1006

(10th Cir. 1998) (“[A] weapon’s proximity to narcotics may be sufficient to provide the

nexus necessary to enhance a defendant’s sentence under § [2K2.1(b)(6)].”).

       Mr. Dominguez has never disputed that he was in possession of a firearm during

the July 2 sale of methamphetamine. He contends, however, that he only had the gun

because the CI had expressed an interest in purchasing it. Thus, Mr. Dominguez argues

       2
        “Commentary that explains a guideline ‘is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
that guideline.’” United States v. McClatchey, 316 F.3d 1122, 1127 (10th Cir. 2003)
(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).


                                             -5-
that because “[t]he firearm was present only to be sold” it was “unrelated” to the drug sale

and cannot form the basis of a § 2K2.1(b)(6) enhancement. We disagree. The fact that

Mr. Dominguez was considering selling the firearm does not eliminate its potential to

facilitate the sale of drugs. We have long recognized that firearms, particularly handguns,

“are a widely recognized tool of the drug dealer[’]s trade.” See, e.g., Bunner, 134 F.3d at

1006. Here, even if Mr. Dominguez intended to sell the firearm, it had the additional

potential to provide him with protection for as long as he retained it. Application Note 14

clearly requires the four-level enhancement in such circumstances.

       Under the circumstances of this case, we conclude the presence of the firearm

during the sale of methamphetamine to the CI had, at a minimum, the potential to

facilitate the drug trafficking offense. Accordingly, the district court properly applied the

enhancement under § 2K2.1(b)(6) when calculating Mr. Dominguez’s sentence.

B.     Rule 32 Findings

       Mr. Dominguez also contends that the district court failed to make sufficient

findings of fact as required by Fed. R. Crim. P. 32. Because Mr. Dominguez failed to

raise this issue below, our review is for plain error. United States v. Cook, 550 F.3d 1292,

1297–98 (10th Cir. 2008). To satisfy plain-error review, Mr. Dominguez must show that

“there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

at 1298 (quotations omitted).

       Rule 32 requires a district court to make specific findings concerning any factual

                                              -6-
matters in the PSR which are disputed. Fed. R. Crim. P. 32(i)(3)(B); see also United

States v. Cereceres-Zavala, 499 F.3d 1211, 1215–16 (10th Cir. 2007) (“[T]o invoke the

district court’s Rule 32 fact-finding obligation, the defendant is required to make specific

allegations of factual inaccuracy.”). “Arguments that challenge the district court’s

application of the guidelines to the facts and not the facts themselves do not trigger any

obligation on the part of the district court to make specific findings.” United States v.

Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (alterations and quotations

omitted).

       Although Mr. Dominguez objected to the application of § 2K2.1(b)(6) during

sentencing, he did not contest the underlying facts supporting the enhancement. Indeed,

on appeal Mr. Dominguez concedes that he had a gun in his possession during the July 2

sale of methamphetamine. As discussed above, Mr. Dominguez maintains only that the

enhancement was wrongly applied because the gun was not being used “in connection

with” the sale of methamphetamine but was present only to be sold. Because Mr.

Dominguez challenged the application of the Guidelines to the facts rather than disputing

the facts underlying such application, the district court was not required to make Rule 32

findings. Accordingly, Mr. Dominguez has not shown that the district court erred.




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                          III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.



                                 ENTERED FOR THE COURT,



                                 Deanell Reece Tacha
                                 Circuit Judge




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