                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                    PUBLISH                     April 25, 2014
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                       No. 13-8069
 v.

 MIGUEL CASTRO-PEREZ,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                  (D.C. No. 1:10-CR-00326-ABJ-1)


Deborah Roden of Woodhouse, Roden, Nethercott, L.L.C., Cheyenne, Wyoming,
for Defendant - Appellant.

L. Robert Murray, Assistant United States Attorney, (and Christopher A. Crofts,
United States Attorney, on the brief), Cheyenne, Wyoming, for Plaintiff -
Appellee.


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Miguel Castro-Perez appeals from a judgment of the

district court sentencing him to sixty-three months’ imprisonment and three years’

supervised release, arguing the court improperly applied a two-level sentencing
enhancement for possession of a firearm in connection with a drug trafficking

offense. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),

and we remand for resentencing.



                                    Background

      The facts relevant to this appeal are not disputed. Mr. Castro-Perez was

part of a cocaine trafficking operation in Jackson, Wyoming that was under

investigation by state and federal law enforcement beginning in March 2009. 2 R.

23. On March 31, 2010, Mr. Castro-Perez sold two ounces of cocaine to an

undercover agent. 2 R. 28; 3 R. 28-29. During the sale, the agent asked if Mr.

Castro-Perez could sell him a gun. 2 R. 28; 3 R. 67. Later that day, after the

drug transaction was completed, Mr. Castro-Perez obtained and sold a pistol to

the agent. 2 R. 28; 3 R. 67.

      Mr. Castro-Perez later pled guilty to one count of distribution of cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and one count of being an

illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5)(A)

and 924(a)(2). 2 R. 9. In the presentence report, the probation office

recommended a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1)

because Mr. Castro-Perez sold a gun to the undercover agent on the same day he

sold cocaine to the agent. 2 R. 31. Mr. Castro-Perez objected, asserting that the

agent initiated the gun sale and that it and the drug sale were separate and

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distinct. Id. at 37.

       At sentencing, Mr. Castro-Perez again objected to the firearm enhancement,

arguing that there was no evidence he possessed the gun in relation to the drug

conspiracy. 3 R. 56-57. The government responded that the sale of the firearm

was negotiated during the drug transaction, and that the gun was sold during the

course of an ongoing drug conspiracy. 3 R. 60.

       The district court ultimately found the firearm enhancement appropriate. 3

R. 69. The court noted that while there was no evidence the weapon was carried

during the drug transaction, the sale of the gun was temporally close to the drug

transaction, the gun was sold to a known drug user, and the gun was of a type

more likely to be used for personal protection than for hunting. 3 R. 68-69.

“Reading the rule broadly,” the court applied the enhancement. 3 R. 69. The

court ultimately sentenced Mr. Castro-Perez to sixty-three months’ imprisonment

and three years’ supervised release. 3 R. 84. He timely appealed. 1 R. 103.



                                     Discussion

       There is only one issue before us: whether the undisputed facts of this case

warrant a sentencing enhancement under § 2D1.1(b)(1). We review that issue de

novo. United States v. Alexander, 292 F.3d 1226, 1229 (10th Cir. 2002).

       The Guidelines call for a two-level sentencing enhancement for drug crimes

“[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. §

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2D1.1(b)(1). The application note to § 2D1.1(b)(1) states that the enhancement

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

The enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1

cmt. app. n.11(A). The government bears the initial burden of proving the

enhancement appropriate by a preponderance of the evidence, and can meet that

burden by showing “that a temporal and spatial relation existed between the

weapon, the drug trafficking activity, and the defendant.” United States v.

Zavalza-Rodriguez, 379 F.3d 1182, 1185 (10th Cir. 2004) (quoting United States

v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001)). This nexus “may be

established by showing that the weapon was located nearby the general location

where drugs or drug paraphernalia are stored or where part of the transaction

occurred.” Alexander, 292 F.3d at 1231 (internal quotation marks omitted).

      In this case, there was no physical relation between the weapon and the

drug trafficking activity. The government acknowledged at sentencing that the

gun was delivered “after the actual controlled purchase [was] completed,” 3 R.

60, and the court found that there was no evidence the gun was carried during the

drug transaction, 3 R. 68-69. Yet it appears from the sentencing transcript that

the district court believed the gun was “present” for purposes of the enhancement.

3 R. 67. That conclusion might have been based on the court’s finding that the

gun purchase was discussed during the drug transaction, 3 R. 68, or that the gun

                                        -4-
was delivered to someone Mr. Castro-Perez knew to be a “drug customer,” 3 R.

69. But neither fact establishes that the gun was physically located near drugs or

a drug transaction. See Alexander, 292 F.3d at 1231.

      The government points out that relevant conduct other than that of the

charged offense may be considered in applying sentencing enhancements. Aplee.

Br. 12 (citing, e.g., United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)).

It posits that since Mr. Castro-Perez delivered the gun during an ongoing drug

trafficking conspiracy the enhancement is appropriate. Id. at 13, 15. Even

assuming the government’s premise, its conclusion does not follow. There is still

no evidence of a spatial connection between the gun and drug trafficking activity.

The record does not support an inference that because Mr. Castro-Perez sold

drugs before and after the gun sale, there must have been drugs present during it.

As much as the government would like to avoid it, physical proximity is a

touchstone of the § 2D1.1(b)(1) firearm enhancement, even if established through

relevant conduct or that of a coconspirator. See, e.g., United States v. Foy, 641

F.3d 455, 470 (10th Cir. 2011) (firearm found in coconspirator’s vehicle when

coconspirator attempted to purchase cocaine); United States v. Roederer, 11 F.3d

973, 982-83 (10th Cir. 1993) (dismissed counts and testimony reflected defendant

dealt drugs from his apartment where he kept a firearm, though the charged

offense did not occur in the apartment). When a firearm is not physically near

drugs or trafficking activities, the “increased danger” of mixing drugs and guns

                                        -5-
contemplated by the Guidelines is not present. See U.S.S.G. § 2D1.1 app. cmt.

n.11(A); United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998). Because

the government failed to establish that Mr. Castro-Perez possessed a firearm in

the vicinity of drug trafficking activity, the two-level enhancement under §

2D1.1(b)(1) was inappropriate.

      The government asserts that even if the enhancement was improperly

applied, the error was harmless. Aplee. Br. 16. It contends that because the

district court granted a two-level downward variance, the enhancement had no

effect on the sentence. Id. The record does not “clearly indicate[] the district

court would have imposed the same sentence had it not relied on the procedural

miscue(s).” United States v. Kieffer, 681 F.3d 1143, 1165 (10th Cir. 2012).

There is no indication that the variance was related to the firearm enhancement;

instead, the record suggests the district court would have granted the variance

even had the enhancement not applied. 3 R. 82-84.

      For these reasons, we REMAND for the district court to vacate the sentence

and resentence consistent with this opinion.




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