                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 2, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-4102
 v.                                                        (D. Utah)
 JUAN CARLOS MARTINEZ-                         (D.C. No. 2:08-CR-00002-TC-1)
 GARCIA,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.


      Defendant Juan Carlos Martinez-Garcia, a Mexican national, pleaded guilty

in the United States District Court for the District of Utah to two counts of illegal

firearms possession and one count of drug possession with intent to distribute.

He was sentenced to 120 months’ imprisonment. Mr. Martinez-Gonzales

challenges his sentence (1) as substantively unreasonable because it did not



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
reflect mitigating facts and (2) as procedurally unreasonable because the district

court (a) did not respond to certain of his arguments at sentencing, and (b)

improperly applied the offense-level enhancement under the United States

Sentencing Guidelines for possession of a firearm “in connection with” another

felony. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND

      On multiple occasions Mr. Martinez-Garcia sold firearms and drugs to

undercover federal agents. The first sale occurred on August 18, 2007. Two days

earlier Mr. Martinez-Garcia had discussed selling crack cocaine to the agent.

When they met, Mr. Martinez-Garcia showed the agent a pistol he wanted to sell.

They haggled over the price, eventually agreeing on $400. After receiving the

gun, the agent said that he wanted to buy an “eightball” of methamphetamine and

Mr. Martinez-Garcia set the price at $180. R., Vol. 3 at 6 (internal quotation

marks omitted). The agent then gave Mr. Martinez-Garcia $580 in cash for the

gun and the drugs (which weighed 2.7 grams).

      The second encounter was similar. On August 20 another undercover agent

arranged to meet Mr. Martinez-Garcia the next day to purchase narcotics and

possibly a firearm. When the two met, Mr. Martinez-Garcia took a gun from his

waistband and told the agent that he would sell it for $400; the agent agreed to

purchase it. The agent next agreed to purchase about 29 grams of powder cocaine




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for $700. The agent then paid Mr. Martinez-Garcia $1100 in cash for the gun and

the drugs.

        The third sale to an undercover agent was a month later, on September 19.

Mr. Martinez-Garcia sold a sawed-off shotgun and two rifles to the agent.

Immediately after the sale, Mr. Martinez-Garcia was charged with illegal reentry

of a previously removed alien. He pleaded guilty to that charge under fast-track

procedures and received a sentence of 24 months’ imprisonment on December 17,

2007.

        Soon thereafter, on January 3, 2008, Mr. Martinez-Garcia was indicted on

seven counts of firearm and drug offenses. In exchange for dismissal of the

remaining counts, he agreed to plead guilty to three counts: (1) possession of a

firearm by a convicted felon during his first interaction with an undercover agent,

see 18 U.S.C. § 922(g)(1); (2) possession of cocaine with intent to distribute

during his second interaction with an undercover agent, see 21 U.S.C.

§ 841(a)(1); and (3) possession of an unregistered sawed-off shotgun during his

third interaction with an undercover agent, see 26 U.S.C. § 5861(d).

        The presentence report (PSR) prepared by the probation office calculated

Mr. Martinez-Garcia’s total offense level under the sentencing guidelines to be

29, and his criminal-history category to be V, yielding an advisory guidelines

sentencing range of 140 to 175 months’ imprisonment. See USSG Ch. 5, pt. A.

Included in the PSR’s offense-level calculation was a four-level enhancement

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under USSG § 2K2.1(b)(6) for the use or possession of a firearm in connection

with Mr. Martinez-Garcia’s drug sales to the undercover agents.

      The district court agreed with the PSR’s recommendations and found the

advisory guidelines range to be 140 to 175 months’ imprisonment. Noting that

this would subject Mr. Martinez-Garcia to a longer sentence than received by

others who were similarly situated, the court departed downward and sentenced

him to 120 months.

II.   DISCUSSION

      On appeal Mr. Martinez-Garcia argues that his sentence is both

substantively and procedurally unreasonable. We address first the substantive

reasonableness of his sentence.

      A.    Substantive Reasonableness

      Had Mr. Martinez-Garcia been sentenced within the advisory guidelines

range of 140 to 175 months’ imprisonment, the sentence would be presumptively

reasonable. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

That is, we would presume that the sentence was neither unreasonably harsh nor

unreasonably lenient. The presumption against unreasonable harshness is only

strengthened by the district court’s downward departure.

      Attempting to overcome this presumption, Mr. Martinez-Garcia argues that

his sentence was excessive because the district court failed to take account of the

prejudice to him resulting from the prosecution of his illegal-reentry offense

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separate from and earlier than the charges in this case. He posits that (1) his

conviction of illegal reentry increased his criminal history above what it would

have been if that offense had been prosecuted with his firearm and drug offenses,

and (2) he could not benefit from consecutive sentences on all his convictions,

because he had almost completed his unlawful-reentry sentence when he was

sentenced in this case.

      But Mr. Martinez-Garcia’s 120-month sentence was eminently reasonable

for his offenses in light of his criminal history (even disregarding his 2007

illegal-reentry conviction). Between July 2004 and February 2006 he had been

convicted after four separate arrests of driving under the influence, burglary,

theft, illegal possession of heroin, possession of a dangerous weapon, attempted

false evidence of title, and illegal reentry of a previously removed alien.

Mr. Martinez-Garcia has not overcome the presumption that his 120-month

sentence was reasonable.

      B.     Procedural Reasonableness

             1.     Calculation of Offense Level

      Mr. Martinez-Garcia first contends that his sentence is procedurally

unreasonable because his offense level under the sentencing guidelines was

improperly increased by four levels under USSG 2K2.1(b)(6). Under that

provision, a four-level enhancement is appropriate “[i]f the defendant used or

possessed any firearm or ammunition in connection with another felony offense;

                                          -5-
or possessed or transferred any firearm or ammunition with knowledge, intent, or

reason to believe that it would be used or possessed in connection with another

felony offense.” USSG § 2K2.1(b)(6). Two application notes clarify the

provision. The first states that the provision applies “if the firearm or

ammunition facilitated, or had the potential of facilitating, another felony

offense.” Id., cmt. 14(A). The second states that the provision applies “in the

case of a drug trafficking offense in which a firearm is found in close proximity

to drugs, drug-manufacturing materials, or drug paraphernalia.” Id., cmt.

14(B)(ii). “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)).

      Mr. Martinez-Garcia twice possessed firearms during meetings with

undercover agents in which he sold them drugs. He argues, however, that because

he had sold and handed over the guns to the undercover agents before he sold

them drugs, the enhancement should not apply. But these firearms were in close

proximity to the drugs that he sold, so Application Note 14(B) clearly requires the

four-level enhancement.

      Moreover, even on its own terms, his argument is flawed. The gun sales

were not isolated transactions divorced from the drug sales. Before each of the

                                          -6-
first two transactions, the undercover agent had spoken with Mr. Martinez-Garcia

to arrange a drug purchase. Before the first meeting there was not even the

mention of a possible gun purchase. Although the agents and Mr. Martinez-

Garcia agreed on the gun prices before the drugs were exchanged, the agents did

not pay for the guns until the drugs were also handed over, paying for both

simultaneously. Thus, Mr. Martinez-Garcia possessed the guns during the course

of the negotiations for the drugs; and he constructively possessed the guns until

he was paid for them (at the same time that he was paid for the drugs). See

United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002) (explaining that

constructive possession “exists when a person knowingly has ownership . . . over

the particular object” (internal quotation marks omitted)).

             2.     Failure to Address Defendant’s Arguments

      Finally, Mr. Martinez-Garcia argues that his sentence was procedurally

unreasonable because the district court failed to consider and explain its rejection

of his “principal arguments” for a shorter sentence. Aplt. Br. at 14. Because he

did not raise this objection at sentencing, we review only for plain error. See

United States v. Poe, 556 F.3d 1113, 1128 (10th Cir. 2009). “In order to prevail

on plain-error review, a party must show there is (1) error, (2) that is plain, (3)

which affects the party’s substantial rights, and (4) which seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (brackets and

internal quotation marks omitted).

                                          -7-
       Mr. Martinez-Garcia’s opening brief fails to identify any “principal

argument” not considered by the district court. He clarifies in his reply brief that

those arguments were that “the applicable guideline range should have been

reduced and the sentence run concurrent based on the prior sentence in the reentry

case.” Reply Br. at 7. But this clarification is untimely. “An appellant cannot

hold his specific complaint in reserve until it is too late for the appellee to

respond.” United States v. Lewis, 594 F.3d 1270, 1285 (10th Cir. 2010).

Regardless, the court responded to the request for a concurrent sentence,

explaining that it was not appropriate in light of the downward departure it had

granted him. And to the extent that Mr. Martinez-Garcia complains that the court

did not address his argument for an even greater departure, it was sufficient for

the court to grant his request in part and explain why it imposed the sentence it

did. A district court has no obligation to explain why it did not sentence a

defendant differently. See United States v. Jarrillo-Luna, 478 F.3d 1226, 1230

(10th Cir. 2007). Because the district court committed no error, there was no

plain error.

III.   CONCLUSION

       The district court’s sentence is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge

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