           Case: 14-13506   Date Filed: 07/24/2015    Page: 1 of 12


                              CORRECTED

                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13506
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:13-cr-00345-ODE-JSA-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

ARTURO SANCHEZ-RUIZ,

                                                Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 24, 2015)

Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Arturo Sanchez-Ruiz appeals his 110-month sentence for being an illegal

alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5); being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and illegal reentry

after having previously been removed, in violation of 8 U.S.C. §§ 1326(a), (b)(2).

Mr. Sanchez-Ruiz raises two arguments on appeal. First, he contends that the

district court erred in applying U.S.S.G. § 2K.2.1(b)(6)(B) and imposing a four-

level enhancement for possession a firearm “in connection with another felony

offense.” Second, he asserts that his 110-month sentence is substantively

unreasonable. After a review of the record and the parties’ briefs, we affirm the

sentence imposed by the district court.

                                          I

      In July of 2013, local police officers in Alpharetta, Georgia, stopped a

Cadillac Escalade for a traffic violation. Mr. Sanchez-Ruiz—the passenger in that

vehicle—gave the officers a Mexican identification card in the name of Rene

Salas-Moreno. Immigration Customs and Enforcement agents arrived at the traffic

stop to locate and inspect the immigration records of Mr. Sanchez-Ruiz and the

driver. When the agents asked Mr. Sanchez-Ruiz if they could speak more

privately at another location, he suggested his apartment, which was nearby.

      Before entering the apartment, the agents asked Mr. Sanchez-Ruiz whether

he had any firearms inside. He initially said he did not, but before the agents


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entered the apartment, he volunteered that there was a firearm in his bedroom. He

also gave the agents written consent to search the apartment. The agents recovered

the loaded firearm under Mr. Sanchez-Ruiz’s pillow and $5,000 in cash under his

bed. They also found in the kitchen of the one-bedroom apartment a

methamphetamine sales ledger showing sales at the price of $17,000 per kilogram,

drug scales, cellophane wrapping, and plastic sandwich bags. After performing an

electronic query, the agents learned that the firearm had been stolen. At the

apartment, the agents fingerprinted Mr. Sanchez-Ruiz, which led them to his true

identity. They then reviewed his criminal record.

      Mr. Sanchez-Ruiz had four prior convictions, including two felony drug

convictions. In 2004, he was convicted of possession of 10 to 70 pounds of

marijuana with intent to sell or deliver. And in 2007, he was convicted of

trafficking more than 400 grams of cocaine and sentenced to 18 years’

imprisonment, but he was removed to Mexico in December of 2012, before

completing his full sentence. A grand jury charged Mr. Sanchez-Ruiz with being

an illegal alien in possession of a firearm, under 18 U.S.C. § 922(g)(5) (Count 1);

being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1) (Count 2);

and illegal reentry after having previously been removed, under 8 U.S.C. §§

1326(a), (b)(2) (Count 3).




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      Mr. Sanchez-Ruiz ultimately pled guilty to all three charges. He received a

base offense level of 24 for Counts 1 and 2, which were calculated together

pursuant to U.S.S.G. § 3D1.2(d). He also received a four-level increase, under §

2K2.1(b)(6)(B), because he possessed the firearm “in connection with another

felony offense,” and this enhancement resulted in an adjusted offense level of 30.

A multiple count adjustment, under § 3D1.4, gave him a combined adjusted

offense level of 31. Because he accepted responsibility for his offenses, he

received a three-level downward adjustment, which resulted in a total offense level

of 28. Based on his prior criminal convictions, Mr. Sanchez-Ruiz was assigned a

criminal history category of IV. With an offense level of 28 and a criminal history

category of IV, Mr. Sanchez-Ruiz’s advisory guideline range was 110 to 137

months of imprisonment.

      At the sentencing hearing, Mr. Sanchez-Ruiz objected to the four-level

enhancement under § 2K2.1(b)(6)(B), because he was neither indicted nor charged

with another felony offense. The government argued that, given Mr. Sanchez-

Ruiz’s history of drug trafficking, the fact that he was the only individual residing

in the one-bedroom apartment at the time the agents entered, and the fact that the

drug items and paraphernalia were found in the apartment, Mr. Sanchez-Ruiz was

involved in drug trafficking. As a result, the firearm was used “in connection with”

felony drug trafficking activity. Mr. Sanchez-Ruiz replied that he shared the


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apartment with two other individuals and that none of the drug paraphernalia was

specifically tied to him. The government rebutted Mr. Sanchez-Ruiz’s claim that

he was not the only resident of the apartment by proffering that the driver of the

Escalade indicated he was moving into the apartment, but had not yet moved in,

and that the lease was likely signed by someone else because Mr. Sanchez-Ruiz

was an illegal alien. Mr. Sanchez-Ruiz accepted the government’s proffer. The

district court then overruled Mr. Sanchez-Ruiz’s objection to the § 2K2.1(b)(6)(B)

enhancement.

      The district court sentenced Mr. Sanchez-Ruiz to 110-months imprisonment,

the low end of the advisory sentencing guideline range. It explained it thought the

sentence was fair and particularly aimed to deter further conduct by Mr. Sanchez-

Ruiz, as “we’ve been through this loop before, the return to the United States and

then more drug trafficking.” Therefore, in order for Mr. Sanchez-Ruiz “to

recognize the seriousness of the conduct and deter [him] from doing the same

things again, it has to be a reasonably stiff sentence.” Mr. Sanchez-Ruiz raised no

additional objections to the sentence after it was imposed.

      On appeal, Mr. Sanchez-Ruiz argues that the district court erred in applying

§ 2K2.1(b)(6)(B), because he was never arrested, charged, nor indicted of any drug

felony offense in relation to the possession of the firearm. He relies primarily on

appeal on testimony from the lead investigating officer, Steven Ledgerwood, at a


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pretrial suppression hearing. Mr. Sanchez-Ruiz also argues that his 110-month

sentence is substantively unreasonable given his personal characteristics and

circumstances.

                                         II

      We review the interpretation of the sentencing guidelines de novo and the

district court’s factual findings under the clearly erroneous standard. See United

States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). A finding of fact “is clearly

erroneous when, after reviewing all the evidence, the court is left with the definite

and firm conviction that a mistake has been committed.” United States v. Philidor,

717 F.3d 883, 885 (11th Cir. 2013) (internal citations and quotations omitted). We

review the substantive reasonableness of a criminal sentence under the abuse of

discretion standard. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir.

2009).

                                         A

      Mr. Sanchez-Ruiz contends that the district court erred when it applied a

four level offense enhancement under § 2K2.1(b)(6)(B) of the advisory sentencing

guidelines. To apply § 2K2.1(b)(6)(B), the district court must find by a

preponderance of the evidence that the defendant possessed the firearm “in

connection with another felony offense” or “with knowledge, intent, or reason to




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

offense.”

      The district court found that Mr. Sanchez-Ruiz indeed possessed the firearm

in connection with a drug trafficking felony, relying on the $5,000 in cash found in

Mr. Sanchez-Ruiz’s apartment, the drug ledger citing the price of $17,000 per

kilogram, and other drug paraphernalia found in the apartment. Mr. Sanchez-Ruiz

argues this evidence was insufficient for the district court to find by a

preponderance that the firearm was used in connection with another drug felony

offense. See United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013)

(stating that where a defendant challenges one of the factual bases of his sentence,

the government must prove the disputed fact by a preponderance of the evidence

with reliable and specific evidence). We disagree.

      On appeal, Mr. Sanchez-Ruiz relies heavily on the testimony of Agent

Ledgerwood, who testified at a pretrial suppression hearing before a magistrate

judge that he did not believe he had sufficient probable cause to arrest Mr.

Sanchez-Ruiz for drug offenses based on the drug items and drug paraphernalia

found in his apartment. Specifically, Agent Ledgerwood stated that the presence of

those items was “more evidence that he might be involved in that stuff, but not

really an arrestable offense.” Mr. Sanchez-Ruiz argues that because Agent

Ledgerwood did not have probable cause to arrest him for a felony drug offense,


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the district court erred when it concluded by a preponderance of the evidence, a

higher standard than probable cause, that Mr. Sanchez-Ruiz possessed the firearm

“in connection with” a felony drug offense. Mr. Sanchez-Ruiz, however, did not

make this argument to the district court or refer to Agent Ledgerwood’s testimony

at sentencing.

      Litigants are required “to make all their objections to a sentencing court’s

findings of facts . . . at the initial sentencing hearing.” United States v. Canty, 570

F.3d 1251, 1256 (11th Cir. 2009). Although Mr. Sanchez-Ruiz did raise an

objection to the four-level enhancement, he never mentioned Agent Ledgerwood’s

testimony or the lack of probable cause to arrest him for a drug offense to the

district court at sentencing. Instead, his bare-bones argument to the district court

was that there was insufficient evidence to conclude the firearm was used “in

connection with another felony offense” because he was not the only occupant of

the apartment.

      “Where the district court has offered the opportunity to object and a party . .

. fails to state [ ] grounds for objection, objections to the sentence will be waived

for purposes of appeal, and this court need not entertain an appeal upon such

objections, unless refusal to do so would result in manifest injustice.” United States

v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990) overruled on other grounds by

United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc). Given


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that Mr. Sanchez-Ruiz did not present to the district court the argument he now

advances on appeal, that argument does not entitle him to reversal. See Canty, 570

F.3d at 1257 (a defendant cannot “present additional evidence and seek additional

findings of fact and conclusions of law to [avoid] the ACCA enhancement when

[he] failed to offer such evidence and seek those findings and conclusions during

the initial sentencing hearing”).

      Based upon the record before it, the district court did not clearly err in

finding that Mr. Sanchez-Ruiz committed a felony drug offense in connection with

the possession of the firearm. The district court, at the time of the sentencing

hearing, could have reasonably concluded by a preponderance of the evidence that

Mr. Sanchez-Ruiz committed a drug trafficking felony offense. The district court

credited the government’s proffer (which Mr. Sanchez-Ruiz accepted) and

concluded that the drug items and paraphernalia belonged to Mr. Sanchez-Ruiz, the

sole resident of the apartment. We are not left with a definite and firm conclusion

that the district court made a mistake. See Philidor, 717 F.3d at 885.

      The district court also did not err in applying its factual findings to its

interpretation of § 2K2.1(b)(6)(B). The guidelines commentary provides that “in

connection with” means when a firearm “facilitated, or had the potential of

facilitating, another felony offense.” U.S.S.G. § 2K2.1, cmt. 14(A). “Another

felony offense” under      § 2K2.1(b)(6)(B) “means any federal, state, or local


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offense,” punishable by imprisonment for a term exceeding one year, regardless of

whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. §

2K2.1, cmt. 14(C). The relevant commentary also states that § 2K2.1(b)(6)(B)

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.”

U.S.S.G. § 2K2.1, cmt. 14(B). “In these cases, applications of subsections

(b)(6)(B) . . . is warranted because the presence of the firearm has the potential of

facilitating another felony offense or another offense, respectively.” Id.

      Although Mr. Sanchez-Ruiz correctly notes that he was not arrested,

charged, or convicted of another felony offense, the commentary makes clear that a

defendant need not be charged or convicted of an offense, in order for the district

court to conclude at sentencing by a preponderance of the evidence that the firearm

facilitated or had the potential of facilitating another felony offense. See U.S.S.G. §

2K2.1, cmt. 14(C). In this case, the drug paraphernalia was found in the same one-

bedroom apartment as the firearm. We have previously held that “[a] firearm found

in close proximity to drugs or drug-related items ‘has’—without any requirement

for additional evidence—the potential to facilitate the drug offense.” United States

v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013). See also United States v. Rhind,

289 F.3d 690, 695 (11th Cir. 2002) (construing § 2K2.1(b)(5)—now §

2K2.1(b)(6)—broadly and finding that “the firearm does not have to facilitate the


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underlying offense”). In sum, the district court did not err in its interpretation and

application of § 2K2.1(b)(6)(B) in this case.



                                          B

      Having concluded that the district court did not err in applying §

2K2.1(b)(6)(B), we turn to the argument that the 110-month sentence was

substantively unreasonable given Mr. Sanchez-Ruiz’s personal background and the

circumstances of his offenses. Although we acknowledge Mr. Sanchez-Ruiz’s

difficult upbringing and family situation, we do not find that his 110-month

sentence, a sentence at the low end of the advisory guideline range and well within

the statutory ranges for Mr. Sanchez-Ruiz’s convictions, is substantively

unreasonable. See United States v. Asante, 782 F.3d 639, 648 (11th Cir. 2015)

(explaining that while we do not “automatically presume a sentence within the

guidelines range is reasonable, . . . we ordinarily expect a sentence within the

Guidelines range to be reasonable”) (internal citations and quotations omitted).

      The district court considered Mr. Sanchez-Ruiz’s previous cycle of criminal

activity and illegal reentry into the United States and emphasized that it believed a

sentence of 110 months was proper for Mr. Sanchez-Ruiz, because he needed “to

recognize the seriousness of the conduct and deter [him] from doing the same

things again.” The district court relied primarily on the sentence’s need to reflect


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the seriousness of the offense, see § 3553(a)(2)(A), and deter future criminal

conduct, see § 3553(a)(2)(B). The weight the district court gives to any § 3553(a)

factor “is a matter committed to the sound discretion of the district court.” United

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We do not find that the district

court abused its discretion in imposing a 110-month sentence.

                                        III

      We affirm the district court’s sentence.



      AFFIRMED.




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