                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 12, 2007
                               No. 07-11750                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 06-00241-CR-CG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JORGE LARIOS-MONTES,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                              (October 12, 2007)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Jorge Larios-Montes pled guilty to one count of unlawful transportation of
an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He now appeals his

sentence of 18 months’ imprisonment.

      Larios-Montes and a codefendant transported 13 illegal aliens in a 13-

passenger van that had been modified to accommodate up to 16 people. The two

defendants had agreed to transport the aliens from California and Arizona to

Alabama, Georgia, and Maryland. At the time the United States Border Patrol

stopped them, Larios-Montes was driving and the codefendant was in the front

passenger seat. In taking the codefendant out of the van, the patrol discovered that

the codefendant had been sitting on a folded knife, positioned in the center of the

seat. The knife was 4-4.5 inches folded, and 8-8.5 inches extended. The two

defendants had previously switched roles as driver/passenger twice during the trip.

Two of the passengers stated that they were afraid, and that they had been

restricted in stopping, eating, and using the bathroom. The van stopped twice for

food during the trip.

      On appeal, Larios-Montes argues that the district court clearly erred in

applying an enhancement, pursuant to U.S.S.G. § 2L1.1(b)(5)(C), for possessing a

dangerous weapon. Larios-Montes claims that (1) the knife was not in furtherance

of the crime, and (2) it was not reasonably foreseeable to him that his codefendant

had a knife.



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       We review a district court’s factual findings for clear error, and the

application of the guidelines to those facts de novo. United States v. Pham, 463

F.3d 1239, 1245 (11th Cir. 2006) (citation omitted). A factual finding is clearly

erroneous when we are “left with a definite and firm conviction that a mistake has

been committed” after a review of all the evidence. United States v. Rodriguez-

Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotation and citation omitted).

       If a dangerous weapon was possessed while smuggling or transporting an

illegal alien, the guidelines call for a 2-level increase, or an increase to level 18,

whichever is higher. U.S.S.G. § 2L1.1(b)(5)(C). A defendant’s offense level is

determined in part on the conduct of his codefendant when the other’s acts are: (1)

reasonably foreseeable; and (2) in furtherance of the jointly undertaken criminal

activity. U.S.S.G. § 1B1.3(a)(1)(B).

       We have not defined when something is “in furtherance” of a conspiracy

under § 1B1.3(a)(1)(B), but we have held, in the context of 18 U.S.C. § 924(c),1

that “furtherance” should be given its plain meaning when it is not defined in the

statute. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). There,

we held that the government must prove that “the firearm helped, furthered,

promoted, or advanced the drug trafficking” in order to establish that it was


       1
         Section 924(c) increases the minimum sentence for an individual who possesses a firearm
“in furtherance of” crimes of violence or drug trafficking. 18 U.S.C. § 924(c).

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possessed in furtherance of the crime. Id. The government must show, through

specific facts, “that the firearm was possessed to advance or promote the criminal

activity.” Id.

      We have held that it is a factual question whether a co-conspirator’s acts

were reasonably foreseeable, and the government must show “reasonable

foreseeability” by a preponderance of the evidence. United States v. Cover, 199

F.3d 1270, 1274 (11th Cir. 2000). To meet its burden, the government only has to

prove that an act was “a necessary or natural consequence of the unlawful

agreement,” not that the defendant expressly agreed to his codefendant’s act. Id. at

1275 (quotation omitted).

      Upon review of the record as a whole, we find no reversible error. At

sentencing, the government proffered the testimony of Border Patrol Agent Matroy

Browder, who was involved in the stop of the defendants. Browder testified as to

the location and length of the knife, the switching of driver/passenger

responsibilities, and the conditions that the passengers were exposed to during the

trip. Upon consideration of this testimony and the record evidence, the district

court made the following finding:

    [I]t’s the finding of the Court that . . . it would be reasonably foreseeable
    that this defendant knew about the presence of that knife. A person doesn’t
    normally sit on a knife unless they want to have it readily accessible. It
    was not in the man’s pocket, which indicates to me that he wanted to have

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    it where he could get to it fairly soon. He didn’t put [it in] the pocket in
    the door, he didn’t . . . put it in the glove compartment. He had it available
    to him if he needed it. And under the circumstances where the two were
    switching out being driver and passenger, it seems very unlikely that this
    defendant would not have known that the other driver, or the person who
    was then in the passenger seat, had access to that knife because of the way
    it was being transported.
           And as a matter of fact it seems most likely to me that whoever was
    sitting in the passenger seat was to have had access to that weapon for
    whatever control it would have been necessary for had that become an
    event. That’s the most likely scenario to me, given the fact that the man
    was sitting on the knife that’s a rather large knife.
           ....
           . . . [T]hese two gentlemen were transporting 15 illegal aliens and a
    situation may have arisen where they felt the need to protect themselves
    either from the passengers or from anybody approaching the van. . . .
    [G]iven the entire situation and the fact that the passenger—the codriver—
    was sitting on the knife, it is more likely than not that it was foreseeable
    that they needed a weapon and that one was present and that he was most
    likely aware of it.

(R71-12, 14.)

       In light of the need to restrict the incidents of stopping, eating, and using the

bathroom, and the fact that at least two of the passengers professed to being afraid,

it is not a stretch to infer that an intimidating atmosphere was imposed by the

defendants within the van. Given the location of the knife (center of front

passenger seat) and the switching of roles between the defendants as

driver/passenger, we cannot say that the district court was clearly erroneous in

finding that possession of the knife was reasonably foreseeable to Larios-Montes

and in furtherance of the transportation of the aliens. Accordingly, we affirm.

      AFFIRMED.


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