USA v. Hector Zapata-Lara

Filing

Case: 09-40627

Document: 00511202863

Page: 1

Date Filed: 08/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40627 August 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s H E C T O R M. ZAPATA-LARA, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

H e c t o r Zapata-Lara appeals the application of a sentence enhancement for p o s s e s s io n of a dangerous weapon. Because the district court failed to find eit h e r that Zapata-Lara possessed the weapon or that a co-conspirator possessed t h e weapon and that that possession was foreseeable to Zapata-Lara, we vacate t h e sentence and remand for resentencing.

Case: 09-40627

Document: 00511202863 Page: 2 No. 09-40627 I.

Date Filed: 08/13/2010

Z a p a t a -L a r a pleaded guilty to conspiring to possess with the intent to dist r ib u t e cocaine under 21 U.S.C. §§ 841 and 846 for his role as the broker in a d r u g deal between Victor Molano and Jesus Cavazos. The factual basis of the g u ilt y plea provided that Zapata-Lara arranged for Molano and a confidential in fo r m a n t to obtain cocaine from a truck at Cavazos's mother's house.1 The p r e s e n t e n c e report ("PSR") reflects that Zapata-Lara met at this location with t h e buyer and seller during their inspection of the cocaine and the negotiations fo r the sale of the drugs. Law enforcement officers arrived and discovered over fiv e kilograms of cocaine under the hood of the truck, which was parked in the d r iv e w a y of the residence and registered to a Juan Carlos Cazares. A subseq u e n t search2 revealed a loaded handgun about fifteen feet from the drug transa c t io n inside a small refrigerator in the garage. T h e PSR recommended, in relevant part, a two-level sentence enhancem e n t for possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1). The court adopted the PSR, reasoning that "[a] gun is a well-accepted, wellk n o w n tool of the trade" and that "[i]t's been clearly established by precedent t h a t . . . at an event such as this involving the conveyance of five-and-a-half-kilos o f cocaine . . . a gun would be present."

II. Z a p a t a -L a r a challenges the enhancement because the government failed t o establish either that he was personally responsible for the gun or that possess io n of it was reasonably foreseeable to him, especially in light of his limited role in the offense. "Because the decision to apply § 2D1.1(b)(1) is a factual one, we

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The record indicates that Cavazos resided at the house.

It is not evident, from the record, just when the subsequent search occurred. That is to say, nothing indicates whether it was akin to a second sweep of the area during the initial search or was a separate search that took place at another time.

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r e v ie w only for clear error." United States v. Eastland, 989 F.2d 760, 769 (5th C ir . 1993); see also United States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996) (s a m e ). Nonetheless, "we examine de novo the district court's purely legal applic a t io n of the sentencing guidelines." United States v. Hooten, 942 F.2d 878, 881 (5 t h Cir. 1991). Zapata-Lara's argument does not concern the specifics of the factfinding, but, rather, whether the facts found are legally sufficient to support t h e enhancement. Our review, then, is de novo. B e f o r e a sentencing court can apply § 2D1.1(b)(1), the government must p r o v e weapon possession by a preponderance of the evidence. Id. It can do that in two ways. Id. at 882. First, it can prove that the defendant personally poss e s s e d the weapon, by showing a temporal and spatial relationship of the weap o n , the drug trafficking activity, and the defendant. Id. To make that showing, t h e government must provide evidence that the weapon was found in the same lo c a t io n where drugs or drug paraphernalia are stored or where part of the t r a n s a c t io n occurred. Id. " A lt e r n a t iv e ly , when another individual involved in the commission of an o ffe n s e possessed the weapon, the government must show that the defendant c o u ld have reasonably foreseen that possession." Id. The guidelines hold a defe n d a n t responsible for all reasonably foreseeable acts of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Thus, a sentencing court may often "infer foreseeab ilit y " from a coconspirator's knowing possession of a weapon. Id. (citing United S ta te s v. Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990)). I n Hooten, 942 F.2d at 881-82, the district court applied § 2D1.1(b)(1) w h e r e a handgun was found on the back porch of a residence near a shed in w h ic h amphetamine was being manufactured. At sentencing, the defendant c la im e d no knowledge that the handgun existed or that a gun was involved in t h e offense. Id. at 881. Noting that the district court had failed to make a findin g regarding the defendant's objection, we remanded and instructed the court t o make an explicit finding as to whether the defendant personally possessed the 3

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p istol, or, if a coconspirator possessed it, whether the defendant reasonably could h a v e foreseen that possession. Id. at 881-82. I n Aguilera-Zapata, we addressed the application of § 2D1.1(b)(1) in light o f the relevant-conduct provision of § 1B1.3(a)(1). We held that because firearms a r e "tools of the trade of those engaged in illegal drug activities," a district court " m a y ordinarily infer that a defendant should have foreseen a co-defendant's p o s s e s s io n of a dangerous weapon, such as a firearm, if the government demons t r a t e s that another participant knowingly possessed the weapon while he and t h e defendant committed the offense by jointly engaging in concerted criminal a c t iv it y involving a quantity of narcotics sufficient to support an inference of an in t e n t to distribute." Aguilera-Zapata, 901 F.2d at 1215. H e r e , the district court determined that the enhancement was applicable b e c a u s e of the presence of a handgun. The court's comments suggest a finding o f foreseeability based on Aguilera-Zapata, but the court never connected the h a n d g u n to any particular co-participant. It is prerequisite that a coconspirator k n o w in g ly possessed the weapon; only then can the court determine whether t h e r e existed the required link between the non-possessing defendant and the w e a p o n by finding that the co-participant's possession was foreseeable to the d e fe n d a n t . Thus, because nothing in the record explicitly links the weapon to a n y of Zapata-Lara's coconspirators, he cannot be held derivatively responsible fo r it.3 F u r t h e r m o r e , there appears to be nothing in the record to support the enh a n c e m e n t on the basis that Zapata-Lara personally possessed the weapon. The P S R does not contain sufficient facts establishing a temporal and spatial relat io n s h ip of the gun, the drug trafficking activity, and Zapata-Lara. As to the

We have no occasion to determine whether any such possession would have been foreseeable to Zapata-Lara, in light of his limited role in the transaction. See, e.g., United States v. Ramos, 71 F.3d 1150, 1158 (5th Cir. 1995). That determination, if applicable, is left to the district court on remand.

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s p a t ia l relationship, the gun was fifteen feet from Zapata-Lara and the drugs, in s id e an appliance in another structure, and the activity took place on someone e ls e 's property. That situation is hardly a textbook case of possessing a dangero u s weapon during the commission of a drug-trafficking offense.4 B u t even assuming that the PSR does adequately support a spatial conn e c t io n between the handgun and the offense, the PSR indicates that the handg u n was not discovered until a "subsequent search" of the premises was conducte d . It is thus uncertain whether there was the necessary temporal connection b e tw e e n the handgun and the offense.5 At any rate, our present concern is more lim it e d . We cannot be sure what rationale the court had in mind to support the e n h a n c e m e n t , based on its limited statement.

III. W e VACATE the sentence and REMAND for resentencing. If, on remand, t h e district court determines that the weapon enhancement is applicable, it s h o u ld make the appropriate findings and state plainly the basis for its decision. Cf. Hooten, 942 F.2d at 881. We express no view on what sentence the court s h o u ld impose on remand.

Cf. Castillo, 77 F.3d at 1498 (gun found in defendant's house where drugs were stored); United States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994) (gun found in defendant's bedroom); U.S.S.G. § 2D1.1, cmt. 3 (deciding that unloaded hunting rifle in closet does not support enhancement). We reject the government's argument that Zapata-Lara has not shown that it was plainly improbable that the handgun was connected to the offense. The defendant has that burden only after the government has met its initial burden of proving a connection between the handgun and the drug-trafficking activity. See United States v. Cooper, 274 F.3d 230, 245-46 & n.8 (5th Cir. 2001); see also U.S.S.G. § 2D1.1 cmt. 3 (discussing burden-shifting with regard to the dangerous-weapon enhancement).
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