                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 5, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 11-4125
                                              (D.Ct. No. 2:10-CR-01132-TC-1)
 CARLOS ANDRADE-VARGAS,                                   (D. Utah)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Senior 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.



      Appellant Carlos Andrade-Vargas pled guilty to possession of heroin with



      *
         This order and judgment is not binding precedent except under the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.
intent to distribute in violation of 21 U.S.C. § 841(a)(1). He now appeals his

sixty-month sentence, claiming the district court erred in finding him ineligible

for a two-level safety valve reduction under United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) § 5C1.2 based on his possession of a firearm in

connection with his drug trafficking offense. We exercise jurisdiction pursuant to

18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Mr. Andrade-Vargas’s

sentence.



                      I. Factual and Procedural Background

      Following controlled heroin purchases from Mr. Andrade-Vargas, agents

with the Drug Enforcement Agency (DEA) obtained search warrants for two Utah

residences identified as being used by Mr. Andrade-Vargas to facilitate his drug

trafficking activities, including a house on South Edison in Salt Lake City and an

apartment at 700 East in Murray. On December 8, 2010, prior to the execution of

the search warrants, task force agents saw Mr. Andrade-Vargas and another male

drive away from the South Edison residence in a black sports utility vehicle

(SUV). Once the SUV stopped and agents approached and identified themselves,

Mr. Andrade-Vargas placed a balloon in his mouth which, when removed,

contained 36.7 grams of heroin. A sweep of his vehicle also produced 142.9

grams of heroin in multiple plastic bags. Agents then executed the search warrant

at the South Edison residence but did not find anything of evidentiary value.

                                        -2-
Agents also executed the second search warrant at the 700 East apartment where

Mr. Andrade-Vargas lived with his girlfriend; they found ammunition for a 45-

caliber firearm and $900 which matched the serial numbers of bills previously

used by agents to purchase heroin from Mr. Andrade-Vargas.



      After his arrest and during an interview with agents at the DEA office, Mr.

Andrade-Vargas stated he also rented a basement bedroom at a residence located

in West Valley City, Utah. Thereafter, the homeowner consented to agents

entering Mr. Andrade-Vargas’s bedroom, where they found 147.3 grams of heroin

under a couch and two semi-automatic handguns, including a 9mm Hi Point and a

Kimber Custom TLE II, under the couch cushion. Agents also discovered

packaging materials, scales, and 9mm and 45-caliber ammunition, as well as

“pay/owe” sheets and documents establishing Mr. Andrade-Vargas’s occupancy

of the bedroom.



      In his interview, Mr. Andrade-Vargas stated he had been distributing heroin

in the Salt Lake City area since June 2010 and claimed another man gave him the

firearms found in the basement bedroom to hold for him while he went to Mexico;

however, Mr. Andrade-Vargas admitted he knew the firearms were in the

basement apartment and under his control. Following his interview, authorities

verified Mr. Andrade-Vargas’s status as a Mexican national who entered the

                                        -3-
United States illegally and determined the heroin seized from Mr. Andrade-

Vargas’s person, vehicle, and basement bedroom totaled 326.9 grams.



      Following his two-count indictment for drug trafficking and knowing

possession of a firearm and ammunition by an illegal alien, Mr. Andrade-Vargas

entered into a written plea agreement in which he agreed to plead guilty to one

count of possession with intent to distribute more than 100 grams of heroin in

violation of 21 U.S.C. § 841(a)(1). He also stipulated he possessed between 100

and 400 grams of heroin with the intent to distribute it to others, drove the vehicle

in which agents found heroin, and knew of the heroin in the basement apartment

which he stipulated was “therefore also in my possession.”



      Following the district court’s acceptance of Mr. Andrade-Vargas’s guilty

plea, a probation officer prepared a presentence report, applying the 2010

Guidelines. Using these Guidelines, the probation officer calculated Mr.

Andrade-Vargas’s base offense level at 26 under U.S.S.G. § 2D1.1(c)(7) because

of his stipulation to possession with intent to distribute 100 grams or more of

heroin. The probation officer also recommended a two-level increase in the

offense level for possession of firearms under U.S.S.G. § 2D1.1.(b)(1) and a

three-level reduction in the offense level for Mr. Andrade-Vargas’s acceptance of

responsibility, for a total offense level of 25. A total offense level of 25, together

                                          -4-
with a criminal history category of I, resulted in a recommended advisory

Guidelines range of fifty-seven to seventy-one months imprisonment. However,

the probation officer determined a Guidelines range of sixty to seventy-one

months imprisonment should apply instead because the mandatory minimum for

an offense under 21 U.S.C. § 841(b)(1)(B) is five years. Finally, the probation

officer found no information warranting a downward or upward departure or

variance.



      Thereafter, Mr. Andrade-Vargas did not object to any of the findings or

calculations in the presentence report but, instead, filed a sentencing

memorandum requesting the district court apply a two-level safety valve

reduction under U.S.S.G. § 5C1.2. Section 5C1.2 allows the court to impose a

sentence in accordance with the applicable Guidelines without regard to the

statutory minimum sentence if certain criteria are met, including if the defendant

did not possess a firearm or other dangerous weapon “in connection with the

offense.” U.S.S.G. § 5C1.2(a)(2). In making his request for a reduction, Mr.

Andrade-Vargas relied on United States v. Zavalza-Rodriguez, 379 F.3d 1182,

1184 (10th Cir. 2004), to argue that § 5C1.2(a)(2) requires actual or active

possession of a weapon, rather than constructive possession, in order to disqualify

him for such a reduction. He then claimed he “did not actively possess a firearm

in connection with” his drug trafficking offense because: (1) “he was not actively

                                         -5-
possessing the firearm at the time his house was searched,” even though

“additional drugs and the unloaded firearms were later found at his home”; (2) he

“was only holding the firearms found in his home for a friend, rather than for

protection during drug deals”; (3) “the drugs were found under a couch, while

both firearms were found under a cushion of the couch of a bedroom” that was

neither a room he slept in nor in a house he lived in; (4) no evidence showed

anyone saw him possessing a firearm or that he used or threatened anyone with

firearms; and (5) no firearms were found with the heroin in the vehicle he drove

or on his person.



      At the sentencing hearing, Mr. Andrade-Vargas again requested application

of a U.S.S.G. § 5C1.2 safety valve reduction on the same grounds. In turn, the

government argued the burden rested on Mr. Andrade-Vargas to prove he was

eligible for the safety valve, and his mere statement he was holding the guns for

another was insufficient proof when considered with the other incriminating

evidence agents found in the rented basement bedroom which he admitted having

exclusive possession over.



      Following the parties’ arguments, the district court denied Mr. Andrade-

Vargas’s request for a safety valve reduction, noting dissimilarities existed

between the circumstances in the instant case and those in Zavalza-Rodriguez, on

                                         -6-
which Mr. Andrade-Vargas relied. It explained the evidence in Zavalza-

Rodriguez suggested the defendant only spent one night at another person’s

residence, leaving a question as to how long he had been at the residence where

authorities found drugs and the firearm for the purpose of determining he met his

burden of demonstrating the gun was unconnected with the drug trafficking

offense. See 379 F.3d at 1184. In contrast, the district court explained that in the

instant case, the basement bedroom belonged to Mr. Andrade-Vargas, even

though he lived with his girlfriend elsewhere, and he used that bedroom to store

his drugs and packaging materials, which agents found in the same room with the

firearms. Under these circumstances, it determined Mr. Andrade-Vargas did not

meet his burden of showing he did not possess the firearms in connection with the

drug offense for the purpose of applying a safety valve reduction. It also relied

on two unpublished Tenth Circuit cases which it found “quite instructive” and

which, it explained, “stress[ed] the proximity of the firearm to the drugs” in

determining whether a safety valve reduction applied. See United States v.

Montgomery, 387 F.App’x 884, 887-88 (10th Cir. 2010) (unpublished op.); United

States v. Castaneda Ascencio, 260 F.App’x 69, 72 (10th Cir. 2008) (unpublished

op.). Relying on these cases, it found the proximity of the handguns, discovered

under the couch cushion, to the heroin, located under the couch, was also

significant for the purpose of denying his request for a safety valve reduction.

Following Mr. Andrade-Vargas’s allocution, the district court imposed a sentence

                                         -7-
at the low end of the recommended minimum statutory Guidelines range for a

term of sixty months imprisonment.



                                   II. Discussion

      Mr. Andrade-Vargas now appeals his sixty-month sentence, relying

exclusively on Zavalza-Rodriguez in support of the same safety valve issues he

presented to the district court and contending the “undisputed evidence of [his]

conduct demonstrated that the firearms were not used in connection with drug

dealing.” In so doing, Mr. Andrade-Vargas suggests the government failed to

present any evidence to rebut his statement he was storing the weapons in the

rented basement bedroom for a friend, including providing evidence he ever used

a gun in connection with any drug distribution activity. In absence of any

evidence of actual possession or use of a firearm in connection with a drug

trafficking offense, Mr. Andrade-Vargas contends evidence of constructive

possession is insufficient under Zavalza-Rodriguez to find him ineligible for the

safety valve reduction, including the proximity of the firearms to the drugs.

Other than the safety valve issue, Mr. Andrade-Vargas does not appeal the

reasonableness of his sentence.



      In turn, the government relies on United States v. Hallum, 103 F.3d 87, 89

(10th Cir. 1996), United States v. Payton, 405 F.3d 1168, 1171 (10th Cir. 2005),

                                         -8-
and multiple Tenth Circuit unpublished cases issued since our decision in

Zavalza-Rodriguez to argue both actual and constructive possession may be

considered in determining if a defendant’s conduct shows he possessed firearms

in connection with his drug trafficking offense, including the proximity of such

firearms to drugs, ammunition, and other drug-related items, as well as the

potential of those firearms to facilitate the offense. The government also points

out Mr. Andrade-Vargas admitted he was aware of and had control over the

handguns and provided no evidence to carry his burden of establishing eligibility

for safety valve relief, other than his self-serving statement during his arrest that

he held the guns for someone else whom he failed to identify.



      We begin with a discussion of our standard of review and the applicable

legal principles. We review a district court’s determination on safety valve

eligibility for clear error, giving due deference to the district court’s application

of the Guidelines to the facts. See Zavalza-Rodriguez, 379 F.3d at 1184. “Clear

error exists if a factual finding is wholly without factual support in the record, or

after reviewing the evidence, we are definitively and firmly convinced that a

mistake has been made.” United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir.

2009) (internal quotation marks omitted). While “[t]he government bears the

burden of proving sentencing enhancements by a preponderance of the evidence,”

United States v. Orr, 567 F.3d 610, 614 (10th Cir. 2009), the defendant bears the

                                          -9-
burden of showing by a preponderance of the evidence he is eligible for safety

valve relief, see Payton, 405 F.3d at 1170-71.



      Guidelines § 2D1.1(b)(1), concerning offenses involving drugs, provides

for a two-level enhancement in the offense level “[i]f a dangerous weapon

(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Generally, we

have held possession under § 2D1.1(b)(1) is satisfied by a showing of mere

proximity to the offense, see United States v. Smith, 131 F.3d 1392, 1400 (10th

Cir. 1997), and this burden is satisfied when the government demonstrates “a

temporal and spatial relation existed between the weapon, the drug trafficking

activity, and the defendant.” Zavalza-Rodriguez, 379 F.3d at 1185 (internal

quotation marks omitted). As a result, the government need only show the

weapon was found in the same location where drugs or drug paraphernalia are

stored for the § 2D1.1 enhancement to apply. See id. at 1186. Thus, an

enhancement under § 2D1.1(b)(1) may apply to a defendant even when his co-

conspirator possessed the weapon. See id. at 1186.



      In turn, the Guidelines safety valve provision permits a defendant to

receive a sentence below the statutory minimum where he “did not ... possess a

firearm or other dangerous weapon ... in connection with the offense.” U.S.S.G.

§ 5C1.2(a)(2) (emphasis added). In Zavalza-Rodriguez, we held an enhancement

                                        -10-
to a sentence under § 2D1.1(b)(1) does not necessarily preclude qualification for a

safety valve reduction under § 5C1.2, stating:

      [S]entence enhancement pursuant to § 2D1.1(b)(1) does not foreclose
      sentence reduction pursuant to § 5C1.2(a)(2). The scope of activity
      covered by § 2D1.1 is broader than the scope of activity covered by
      § 5C1.2. For purposes of § 2D1.1 constructive possession, either
      physical proximity or participation in a conspiracy, is sufficient to
      establish that a weapon “was possessed.” Whereas for purposes of
      § 5C1.2 we look to the defendant’s own conduct in determining
      whether the defendant has established by a preponderance of the
      evidence that the weapon was not possessed “in connection with the
      offense.”

379 F.3d at 1188 (emphasis added) (relying in part on U.S.S.G. § 5C1.2 cmt. n.4).

As previously indicated, the defendant in Zavalza-Rodriguez denied knowledge of

a gun found in a bedroom of a house where he apparently lodged for only one

night for the purpose of establishing he did not possess the weapon in connection

with the drugs found in the home. Id. at 1184. In affirming the district court’s

§ 5C1.2 reduction, we explained § 2D1.1(b)(1) merely requires “constructive

possession” based on proximity of the gun, while § 5C1.2 requires “active

possession” based on the defendant’s conduct where “there is a close connection

linking the individual defendant, the weapon and the offense.” Id. at 1187.



      In Zavalza-Rodriguez, we also distinguished the facts in that case from

those in Hallum, where we held “a firearm’s proximity and potential to facilitate

the offense is enough to prevent application of” the safety valve provision. 103


                                        -11-
F.3d at 89. We explained that while Mr. Zavalza-Rodriguez denied knowledge of

the gun, Mr. Hallum admitted the rifle, found in the truck he used for his drug

trafficking offense, belonged to him. See 379 F.3d at 1184, 1186 n.2. In Hallum,

we affirmed the district court’s determination Mr. Hallum failed to provide

sufficient evidence establishing he had the rifle in his truck for a purpose

unconnected with his drug trafficking offense and, in so doing, relied, in part, on

the firearm’s proximity to the drugs and its potential to facilitate the offense. See

103 F.3d at 89-90.



      As the government points out, since Zavalza-Rodriguez, we and other

circuit courts have focused on the defendant’s conduct, whether through actual or

constructive possession of a firearm, to determine if the firearm is connected with

the drug trafficking offense for the purposes of a § 5C1.2 reduction. See United

States v. Herrera, 446 F.3d 283, 287-88 & n.5 (2d Cir. 2006) (holding nothing in

Zavalza-Rodriguez prevents consideration of constructive possession in denying

safety valve reduction when based on defendant’s own conduct where defendant

keeps weapon under his personal dominion and control); Payton, 405 F.3d at

1170-71 (affirming denial of § 5C1.2 reduction for actual possession where

defendant’s apartment contained five firearms stored in close proximity to

substantial amounts of methamphetamine); United States v. Bolka, 355 F.3d 909,

915-16 (6th Cir. 2004) (holding defendant not entitled to safety valve relief where

                                         -12-
evidence shows he kept three firearms in home where he sold and manufactured

drugs). 1 In so doing, we have continued to rely on our holding in Hallum that a

firearm’s proximity and potential to facilitate the offense may be sufficient to

prevent application of the safety valve provision, see 103 F.3d at 89, including

when “[t]he mere propinquity of the weapons and drugs suggests a connection

between the two.” Payton, 405 F.3d at 1171. Even if a defendant does not have

“actual possession” of a firearm by means of “direct physical control over a

firearm at a given time,” United States v. Jameson, 478 F.3d 1204, 1209 (10th

Cir. 2007), we have said constructive possession exists if a person “knowingly

holds the power and ability to exercise dominion and control” over the firearm.

United States v. King, 632 F.3d 646, 651 (10th Cir. 2011) (internal quotation


      1
         See also Montgomery, 387 F.App’x at 887-88 (relying on Herrera to hold
constructive possession of firearm in residence where defendant and another
person operated drug conspiracy is sufficient to deny safety valve reduction);
United States v. Gonzalez-Ambriz, 353 F.App’x 155, 157 (10th Cir. 2009)
(unpublished op.) (applying Payton and Hallum in upholding denial of safety
valve reduction where firearm located in defendant’s bedroom closet was close to
drugs, money, and drug paraphernalia); Castaneda Ascencio, 260 F.App’x at 72
(relying on Payton and Hallum to determine mere propinquity of weapons and
drugs suggested a connection between weapon and drugs sufficient to prevent
application of § 5C1.2(2) where weapon was located in hall closet in defendant’s
small apartment not far from the drugs and readily accessible to anyone in
apartment); United States v. Archuleta, 257 F.App’x 116, 123-24 (10th Cir. 2007)
(unpublished op.) (relying on Hallum and determining firearm accessible to
defendant in his vehicle where he intended to conduct drug transaction met “in
connection with offense” criterion for purpose of denying safety valve reduction).
While none of these cases relied on by the government are precedential, they may
be cited for their persuasive value. See Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).

                                        -13-
marks omitted). “When a defendant has exclusive possession of the premises on

which a firearm is found, knowledge, dominion, and control can be properly

inferred because of the exclusive possession alone.” Jameson, 478 F.3d at 1209.

Indeed, “control over the premises where the firearm is found can be a strong

indicator of constructive possession.” King, 632 F.3d at 651.



      In this case, the government presented evidence Mr. Andrade-Vargas

possessed the firearms in close proximity to the drugs for the purpose of

enhancing Mr. Andrade-Vargas’s sentence under § 2D1.1(b)(1), which Mr.

Andrade-Vargas does not contest on appeal. However, as Mr. Andrade-Vargas

contends, such an enhancement did not automatically preclude the district court

from granting his request for a safety valve reduction. Instead, as required under

Zavalza-Rodriguez, the district court considered Mr. Andrade-Vargas’s conduct

with respect to the handguns discovered. It found Mr. Andrade-Vargas did not

qualify for a safety valve reduction because the basement bedroom in question

belonged to Mr. Andrade-Vargas and he used that bedroom to store his drugs and

packaging materials, which were found together with the firearms. It is clear this

factual determination is supported by Mr. Andrade-Vargas’s own uncontested

admissions, in both his plea agreement and during his DEA interview, that he

rented the basement apartment, knew the firearms were in the apartment and

under his control, and knew of and possessed the heroin in the basement bedroom.

                                        -14-
Indeed, this shows a “close connection” existed linking Mr. Andrade-Vargas, the

weapons, and the offense, as required by Zavalza-Rodriguez, for the purpose of

denying a safety valve reduction. 379 F.3d at 1187.



      To the extent Mr. Andrade-Vargas relies on Zavalza-Rodriguez to suggest

close proximity of the firearms and drugs may never be relied on for the purposes

of U.S.S.G. § 5C.1(2) or that one must have actual physical possession of the

firearm to make him ineligible for a safety valve reduction, he is mistaken. In

addition, as the district court indicated, the facts in that case are clearly

distinguishable from those presented here. Mr. Andrade-Vargas admitted

knowledge and control of the firearms found in the bedroom he rented and had

exclusive control over, while Mr. Zavalza-Rodriguez demonstrated no such

knowledge of the firearm found in someone else’s home over which he lacked

exclusive possession.



      As to Mr. Andrade-Vargas’s claim the handguns belonged to someone else,

he nevertheless admitted having knowledge and control of the handguns found in

his rented bedroom where he conducted his activities, and there is no requirement

one must own the firearms in question to be ineligible for a safety valve

reduction. Instead, as previously explained, possession may be demonstrated by

one’s own conduct, where, for instance, one “knowingly holds the power and

                                          -15-
ability to exercise dominion and control” over the firearm, especially where, as

here, the defendant had exclusive possession of the premises where it was found,

see King, 632 F.3d at 651, and the firearm had the requisite proximity and

potential to facilitate the drug trafficking offense, see Hallum, 103 F.3d at 89.

Moreover, it is evident that, in denying the reduction, the district court discredited

Mr. Andrade-Vargas’s seemingly self-serving claims he did not own the handguns

and that they were not in the room for the purpose of facilitating his drug

trafficking activities–both of which were unsupported by any evidence. We have

long recognized firearms are tools of the trade for drug traffickers, see United

States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991), and a district court’s

determination on whether to apply a safety valve reduction “is fact specific and

dependent on credibility determinations that cannot be replicated with the same

accuracy on appeal,” United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir.

2006).



         Under the circumstances presented, the district court’s factual findings are

not without factual support in the record nor are we otherwise left with a definite

and firm conviction a mistake has been made. Rather, Mr. Andrade-Vargas’s own

conduct demonstrates a close connection linking him, the weapons, and the

offense, as required by Zavalza-Rodriguez, and Mr. Andrade-Vargas has not

otherwise met his burden of proving by a preponderance of the evidence that he

                                           -16-
did not possess the weapons in connection with his drug trafficking offense. As a

result, we conclude the district court did not err in denying a safety valve

reduction under § 5C1.2.



                                   III. Conclusion

      Accordingly, we AFFIRM Mr. Andrade-Vargas’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                         -17-
