US v. Rafael Jaramillo

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00051-NCT-1 Copies to all parties and the district court/agency. [999657320].. [14-4929]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4929

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL PINEDA JARAMILLO, a/k/a Aurelio Garcia Penaloza,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00051-NCT-1)

Submitted:

July 23, 2015

Decided:

September 10, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rafael

Pineda

120-month

Jaramillo

sentence

imposed

appeals

from

pursuant

to

his
his

conviction
guilty

plea

and
to

manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) (2012).

On appeal, Jaramillo’s counsel submitted a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning

whether

the

district

court

erred

in

enhancing

Jaramillo’s sentence for possession of firearms in connection
with the offense.
Jaramillo

has

not

Although advised of his right to do so,
filed

a

pro

se

Government declined to file a brief. *

supplemental

brief.

The

After a thorough review of

the record, we affirm.
Jaramillo argues that the district court erred in applying
the

enhancement

§ 2D1.1(b)(1)

under

(2013),

for

U.S.

Sentencing

possession

of

Guidelines
firearms,

Manual

asserting

there was insufficient evidence that he possessed the firearms
found in the stash house or that the firearms were connected to
the drug activity for which he was convicted.

In assessing a

challenge to the district court’s application of the Guidelines,
we review the district court’s factual findings for clear error
*

In addition, the Government has not filed a motion to
dismiss based upon Jaramillo’s appellate waiver in his plea
agreement. We decline to raise the waiver sua sponte.

2

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and its legal conclusions de novo.

United States v. Alvarado

Perez, 609 F.3d 609, 612 (4th Cir. 2010).
Section 2D1.1(b)(1) of the Guidelines directs a district
court

to

increase

a

defendant’s

offense

level

by

two

levels

“[i]f a dangerous weapon (including a firearm) was possessed.”
The

enhancement

is

proper

when

the

weapon

at

issue

“was

possessed in connection with drug activity that was part of the
same

course

of

conduct

or

common

scheme

as

the

offense

of

conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th
Cir.

2010)

(internal

quotation

marks

omitted),

even

in

the

absence of “proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun.”
F.3d

850,

omitted).
is

852

(4th

Cir.

United States v. Harris, 128

1997)

(internal

quotation

marks

“[P]roof of constructive possession of the [firearm]

sufficient,

and

the

Government

is

entitled

to

rely

on

circumstantial evidence to carry its burden.”

Manigan, 592 F.3d

at

to

629.

The

defendant

bears

the

burden

show

that

a

connection between his possession of a firearm and his narcotics
offense is “clearly improbable.”

Harris, 128 F.3d at 852-53.

Jaramillo has failed to show that the connection between
the

firearms

and

the

manufacture

of

marijuana

was

“clearly

improbable,” and, on Anders review, “[t]here is nothing in the
record

to

suggest

that

the

weapons
3

were

unconnected

to

the

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offense.”

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United States v. Gomez-Jiminez, 750 F.3d 370, 382,

cert. denied, 135 S. Ct. 384 (2014). To the contrary, the record
affirmatively supports the connection: Jaramillo participated in
the cultivation of marijuana at the stash house where he was
arrested, and three loaded and readily-accessible weapons were
found inside the stash house following his arrest.

As such, the

court’s factual finding that the weapons were connected to the
drug offense was not clearly erroneous.
In

accordance

with

Anders,

we

have

reviewed

record for meritorious issues and have found none.
we

affirm

Jaramillo’s

conviction

and

sentence.

the

entire

Accordingly,
This

court

requires that counsel inform Jaramillo, in writing, of the right
to petition the Supreme Court of the United States for further
review.

If Jaramillo requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Jaramillo.

We dispense with oral argument because

the facts and legal contentions are adequately expressed in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

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