Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

MEMORANDUM^** 

Juan Antonio Castillo-Diaz appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his conviction on a guilty plea, for conspiracy to distribute one kilogram of cocaine in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B), and 846. Castillo-Diaz claims the district court erred by adjusting his sentence under U.S.S.G. 2D1.1(b) (1) because a firearm was present during the commission of the drug offense. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's application of the Sentencing Guidelines. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989). We review for clear error the district court's finding that Castillo-Diaz possessed a firearm during the commission of a narcotics offense. United States v. Stewart, 926 F.2d 899 (9th Cir. 1991). The government need show no connection between the gun and the crime. Restrepo, 884 F.2d at 1296. The adjustment is appropriate under the Guidelines if the weapon was present during the commission of an offense, "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. Sec. 2D1.1(b) (1), comment. n. 3. Moreover, "a defendant convicted of conspiracy may be sentenced not only on the basis of his own conduct, but also on the basis of the 'conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.' " United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990) (citing U.S.S.G. Sec. 1B1.3, comment. n. 1).

Castillo-Diaz was arrested on January 16, 1990 in a parking lot after he escorted a confidential informant from a black pickup truck to a red pickup truck parked some 20 meters away, and showed her the kilogram of cocaine she had arranged to purchase from his codefendant, Martinez. In the course of the negotiations for the sale, Martinez had told the informant he would have three or four people with him when he made the sale to "blow away cops" if necessary. Police found a sawed-off .22 caliber rifle on the floor of the black truck. Martinez pleaded guilty to carrying a weapon in the course of the conspiracy for which Castillo-Diaz was convicted. The district court found that Martinez "used" the gun (CR 71 at 6), that Castillo-Diaz was "fully aware of this weapon, and that it was in the pickup [to] be used in the event the transaction went sour" (CR 71 at 14-15). These findings were not clearly erroneous and they support Castillo-Diaz's liability for possessing the weapon by meeting both the "not clearly improbable" test of Restrepo, and the "reasonably foreseeable" test of Garcia.

AFFIRMED.