Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Raul Leon-Gutierrez appeals his conviction and sentence under the United States Sentencing Guidelines ("Guidelines"), following a jury trial. Leon-Gutierrez was convicted for conspiracy to possess and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a) (1), and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Leon-Gutierrez contends that his conviction for carrying a firearm was not supported by sufficient evidence and that the district court erred by sentencing him as a leader/organizer and enhancing his base offense level pursuant to Guidelines Sec. 3B1.1. We have jurisdiction under 21 U.S.C. § 1291 and affirm.

Sufficiency of Evidence

Sufficient evidence to support a conviction exists if, "a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989) (citation omitted); Jackson v. Virginia, 443 U.S. 307, 319 (1979). To convict under 18 U.S.C. § 924(c), the government must prove that the defendant carried a firearm and that he did so during and in relation to the charged drug trafficking offense. United States v. Power, 881 F.2d 733, 735 (9th Cir. 1989). The defendant need not display or use the firearm. Id., 881 F.2d at 737.

Leon-Gutierrez argues that, although he carried an automatic weapon when he was arrested, the evidence was insufficient to show that he carried the gun in relation to the offense. He argues that he never discussed, used or displayed the weapon, and that he carried it to protect himself in a rough neighborhood. Nevertheless, Leon-Gutierrez possessed the loaded weapon when he was arrested for distributing six kilograms of cocaine. At trial, an expert witness testified that drug traffickers frequently carried weapons to protect themselves and their drugs, and to intimidate others.

Viewing the evidence in the light most favorable to the government, a trier of fact could have found beyond a reasonable doubt that Leon-Gutierrez carried the firearm during and in relation to the drug trafficking crime. See Power, 881 F.2d at 737.

Enhancement for Being an Organizer or Leader

Leon-Gutierrez argues that the district court clearly erred by concluding that he was the leader of two co-conspirators. He claims he was a "middleman" in the transaction and that no adjustment was warranted.

Whether a defendant was an organizer or leader of the criminal activity is a factual determination and we review for clear error. United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990); see also United States v. Avila, 905 F.2d 295, 299 (9th Cir. 1990) (adjustment proper when defendant coordinated procurement of cocaine).

Here, Leon-Gutierrez was introduced to a confidential informant by a co-conspirator as the cocaine supplier. He personally counted $100,000 in purchase money provided by the government agents posing as cocaine buyers. Leon-Gutierrez designated the location where the exchange would take place and obtained the cocaine without assistance. He directed a third co-conspirator to drive the car, which contained the cocaine, to the designated exchange location. When Leon-Gutierrez arrived at the location, he personally escorted the confidential informant to the car containing the drugs. At sentencing, the district court adopted the presentence report and increased Leon-Gutierrez's base offense level based on his leadership role in the offense.

The district court's determination was supported by the evidence and therefore, not clearly erroneous. See Carvajal, 905 F.2d at 1296.

AFFIRMED.