Unpublished Disposition, 923 F.2d 863 (9th Cir. 1990)

MEMORANDUM^** 

Miguel Cazares-Garcia appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following a guilty plea to one count of conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B), and 846. Cazares-Garcia contends that the district court erred by enhancing his sentence for possession of a firearm in connection with a drug offense pursuant to U.S.S.G. Sec. 2D1.1. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review a district court's application of the Sentencing Guidelines de novo. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989). We review for clear error the district court's findings of fact underlying sentencing determinations. Id.

The Guidelines require the district court to adjust upward a defendant's base offense level if the defendant possessed a firearm "during commission of [a drug] offense." U.S.S.G. Sec. 2D1.1. Specific offense characteristic adjustments are properly determined based on " 'all such acts ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.' " United States v. Willard, No. 89-30206, slip op. 14579, 14585 (9th Cir. Nov. 27, 1990) (quoting U.S.S.G. Sec. 1B1.3(a) (2)) (affirming a weapon enhancement in a sentence for drug distribution, even though the guns were found several miles from location of offense of conviction, because guns were possessed during drug distributions that were part of the same "course of conduct" as the offense of conviction). There is no requirement that the district court find a connection between the firearm and the drug offense, as long as it is not " 'clearly improbable that the weapon was connected with the offense.' " Willard, No. 89-30206, slip op. at 14584 (quoting U.S.S.G. Sec. 2D1.1, comment. n. 3); Restrepo, 884 F.2d at 1295.

Here, Cazares-Garcia was convicted of participation in a conspiracy to distribute cocaine and heroin. He contends that his sale of a semi-automatic weapon to the government's confidential informant occurred before the existence of the conspiracy to distribute cocaine and heroin, and thus did not occur "during" the commission of the offense.

Cazares-Garcia sold marijuana to the informant on April 12, 1989, and sold the weapon on April 22, 1989, while negotiating the sale of cocaine. It was not "clearly improbable" that the weapon sale was connected to negotiations for the cocaine sale. See Restrepo, 884 F.2d at 1296. Subsequently, Cazares-Garcia was involved in sales of cocaine or heroin to the informant on April 25, July 11, July 28, September 11, and November 21, 1989. Although the gun sale took place before the first cocaine sale, it occurred after the marijuana sale and was part of the same course of conduct as the later drug sales that formed the basis of the offense of conviction.¹  The district court's finding that the gun was possessed in connection with the drug offense was not clearly erroneous. See Willard, No. 89-30206, slip op. at 14585-86.

AFFIRMED.