US v. Anastacio Carreno-Espinoza, No. 14-4107 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4107 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANASTACIO CARRENO-ESPINOZA, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00175-TDS-1) Submitted: August 29, 2014 Decided: September 8, 2014 Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, T. Nick Matkins, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anastacio Carreno-Espinoza appeals from his 65-month sentence imposed pursuant to his guilty plea to possession of firearms by an illegal alien. On appeal, he challenges the district court imposition of a four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012) for possession of the firearms in connection with another felony offense, and asserts unreasonable. that his sentence was substantively We affirm. In reviewing the district court s application of the Sentencing Guidelines, we review its legal conclusions de novo and its factual findings for clear error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). An enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012) is appropriate facilitated, or felony offense. when a had the firearm possessed potential of by a defendant facilitating, USSG § 2K2.1 cmt. n.14(A). another The purpose of Section 2K2.1(b)(6) is to punish more severely a defendant who commits dangerous a separate by the felony presence offense of a that firearm. is rendered United more States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation marks omitted). The requirement that the firearm be possessed in connection with another felony is satisfied if the firearm had 2 some purpose including or if effect the with firearm embolden the actor. respect was to present the for other offense, protection or to United States v. McKenzie-Gude, 671 F.3d 452, 464 (4th Cir. 2011) (internal quotation marks omitted). However, the requirement is not satisfied if the firearm was present due to mere accident or coincidence. at 163 (internal quotation marks Jenkins, 566 F.3d omitted). The Guidelines commentary specifically provides that a defendant possesses a firearm in connection with another felony in the case of a drug trafficking proximity offense to in drugs, which a firearm drug-manufacturing is found in materials, close or drug paraphernalia . . . because the presence of the firearm has the potential offense. of facilitating [the drug-trafficking] felony USSG § 2K2.1 cmt. n.14(B). We concluding find that that the the district enhancement court should did not apply. err The in record establishes that two of the firearms were located in the home, were loaded, and were easily accessible. Carreno-Espinoza s conflicting In addition, based on explanations, the hearsay statements of informants, and the items recovered in the search, the Government presented sufficient evidence that Carreno- Espinoza was engaged in drug dealing, including the sale of a large amount of cocaine only the day before from his home. Moreover, the photographs and currency found in the home, and 3 the surrounding circumstances, showed that Carreno-Espinoza flaunted illegally possessed firearms and proceeds from his drug trafficking, further connecting the firearms to the drugs. The district court correctly noted that firearms have the tendency to facilitate drug sales by offering protection and emboldening drug sales. See USSG § 2K2.1 cmt. n.14(B). Based on the foregoing, the district court properly found sufficient evidence of drug dealing and a sufficient nexus between the firearms and Carreno-Espinoza s drug activities, and there was no error in application of the enhancement. We deferential review sentences for abuse-of-discretion States, 552 U.S. 38, 41 (2007). reasonableness, the district reasonableness standard. Gall under v. a United When reviewing for substantive court totality of the circumstances. tak[es] Id. at 51. into account the If the sentence is within or below the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. Cir. United States v. Yooho Weon, 722 F.3d 583, 590 (4th 2013). Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d omitted). 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) (internal quotation marks Because there is a range of permissible outcomes for any given case, an appellate court must resist the temptation to 4 pick and choose among possible sentences and rather must defer to the district court's judgment so long as it falls within the realm of these rationally available choices. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); see also United States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting substantive reasonableness contemplates a range, not a point ). On appeal, Carreno-Espinoza argues that his within- Guidelines sentence is substantively unreasonable in light of his limited criminal history, family support, and the fact that he will be deported. However, the district court considered these mitigating factors at sentencing along with the serious nature of the offense, Carreno-Espinoza s relevant conduct, the need for deterrence, and the need to promote respect for the law. Carreno-Espinoza s argument is essentially just a disagreement with the district court s weighing of the statutory factors; he has not shown why the district court s conclusions were unreasonable. Because Carreno-Espinoza has failed to rebut the presumption of reasonableness, we conclude that his sentence is substantively reasonable. Accordingly, We dispense with oral we affirm argument 5 Carreno-Espinoza s because the facts sentence. and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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