United States v. Patricio Renteria-Saldana

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Steven M. Colloton and Raymond W. Gruender AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4167546] [13-1542]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1542
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Patricio Renteria-Saldana,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 21, 2013
Filed: June 23, 2014
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
Patricio Renteria-Saldana pleaded guilty to a charge of conspiracy to distribute
and possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The district court1 sentenced him to 210 months’
1

The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

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imprisonment, followed by five years of supervised release. Renteria-Saldana
appeals, arguing that the district court committed procedural error in calculating the
advisory sentencing guideline range. We affirm.
I.
After Renteria-Saldana pleaded guilty to the conspiracy charge, the district
court was presented with a presentence investigation report that included some
statements of fact to which Renteria-Saldana made no objection. The government
also presented police reports concerning an investigation of Renteria-Saldana and
others who were involved in the charged conspiracy. These sources are the basis for
the factual information that underlies the disputed guidelines calculations.
Renteria-Saldana was arrested after a traffic stop in March 2012. During a
search of Renteria-Saldana and his car, officers found methamphetamine, cash, and
drug records. Renteria-Saldana admitted that he distributed methamphetamine for
others who used a house at 1515 Dorcas Street in Omaha as a “stash house” where
he picked up the drugs. Renteria-Saldana had a key to the stash house and granted
officers permission to search the house.
During the search of the house on Dorcas Street, officers found 121 grams of
methamphetamine in a clear plastic container under the floor beneath the sink cabinet
in the kitchen. Under the sink, they also located a drug scale and a loaded ninemillimeter firearm. The search team discovered additional methamphetamine in a
trash-bag box in the kitchen area and on a closet shelf in a bedroom. According to
police reports, officers found an inflatable bed, but no clothes or furniture in the
house. Officers also searched Renteria-Saldana’s residence, where they seized drug
records and $34,000 in cash.

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Officers interviewed Renteria-Saldana after his arrest in March 2012 and
provided the following written report, which was admitted into evidence at
sentencing. Renteria-Saldana first claimed that a person named “Antonio” told him
to pay the utility bills for the stash house, but later admitted that was not true.
Instead, Renteria-Saldana acknowledged that he worked directly with two cousins
who left for Mexico in early March and left Renteria-Saldana in charge of the stash
house. Renteria-Saldana said that every two or three days someone named Francisco
called and told him that drugs had been dropped off at the stash house, typically under
the sink in a plastic storage bin. Francisco also called to alert Renteria-Saldana when
someone was coming to the stash house to pick up money from Renteria-Saldana’s
drug sales.
The district court addressed two disputed issues under the sentencing
guidelines. First, the district court found that Renteria-Saldana possessed a firearm
and thus added two offense levels pursuant to USSG § 2D1.1(b)(1). The court found
that Renteria-Saldana was in constructive possession of the loaded firearm that
officers found under the kitchen sink in the stash house:
He was using the stash house. He had the keys to it. As noted, he was
paying the utilities for it. And whether or not he was under the direction
of somebody up the chain of command in Mexico, the weapon was
there, right with the scales and the drugs. And it was not clearly
improbable that it was there to be used in connection with the drug
dealing. So again, I find he was in possession of the weapon.
Second, the court found that Renteria-Saldana maintained the Dorcas Street
house for the purpose of distributing a controlled substance, and thus added two
offense levels pursuant to USSG § 2D1.1(b)(12):
I find that he was operating his drug-dealing business from that stash
house and he was maintaining that stash house. And he had the keys to
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it and he paid the utilities for it. So whether or not he was getting
directions from somebody else in Mexico, I find that that enhancement
is proper.
The district court then sentenced Renteria-Saldana at the low end of the
advisory-guidelines range to a term of 210 months in prison, to be followed by five
years of supervised release. Renteria-Saldana appeals the sentence. We review the
district court’s findings of fact for clear error and its application of the guidelines de
novo. United States v. Anderson, 618 F.3d 873, 879 (8th Cir. 2010).
II.
The sentencing guidelines provide for a two-level increase in offense level in
a drug-trafficking case “[i]f a dangerous weapon (including a firearm) was
possessed.” USSG § 2D1.1(b)(1). The enhancement “should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” Id., comment. (n.11(A)). Thus, the government must show that
“(1) the gun was possessed and (2) it was not clearly improbable that the weapon was
connected to the drug offense.” Anderson, 618 F.3d at 880. Actual or constructive
possession is sufficient to satisfy the guideline. Id.
The district court found that Renteria-Saldana constructively possessed the
firearm that was found under the sink at the Dorcas Street house. Constructive
possession implies knowing possession, see United States v. McCracken, 110 F.3d
535, 541 (8th Cir. 1997), so assuming that knowledge was required, cf. United States
v. Fiala, 929 F.2d 285, 289 (7th Cir. 1991), the finding of knowledge was not clearly
erroneous. As one who possessed a key to the house and paid the utility bills,
Renteria-Saldana had dominion over the area where the gun was found. He
acknowledged that he regularly accessed the area beneath the sink to retrieve drugs.
Firearms are tools of the drug trade, and it was reasonable to infer that Renteria-4-

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Saldana knew about the loaded gun that was found in the same area as the drugs. See
United States v. Saddler, 538 F.3d 879, 888-89 (8th Cir. 2008).
The evidence also supports the district court’s finding that it was not clearly
improbable that the weapon was connected with Renteria-Saldana’s drug trafficking
offense. The gun was not an unloaded hunting rifle in a closet, see USSG § 2D1.1,
comment. (n.11(A)); it was a loaded handgun located in a stash house with the drugs
that were delivered to Renteria-Saldana for resale. Whether or not Renteria-Saldana
personally used the firearm, it was enough for the government to show that he
knowingly possessed it and that it was connected to the drug trafficking offense.
United States v. Garcia, 703 F.3d 471, 476 (8th Cir. 2013). The district court
properly applied USSG § 2D1.1(b)(1).
The guidelines also provide that a defendant’s offense level must be increased
by two levels if he knowingly “maintained a premises for the purpose of
manufacturing or distributing a controlled substance.” USSG § 2D1.1(b)(12). In
determining whether a defendant “maintained” a premises, the court should consider
whether the defendant had a possessory interest in the premises and the extent to
which the defendant controlled access to, or activities at, the premises. Id., comment.
(n.17).
Although Renteria-Saldana did not own or reside at the Dorcas Street stash
house, he exercised control over it and operated his drug-dealing business from the
premises. A police report submitted at sentencing indicated that, according to
Renteria-Saldana, two of his co-conspirators had recently left for Mexico and left him
in charge. Renteria-Saldana had a key to the house and paid the utility bills. He
regularly picked up drugs from the house and brought drug-sale proceeds to the
premises for retrieval by other conspirators. There was no furniture or clothing in the
house to suggest that it was used for anything other than drug trafficking. The record
thus supports the finding that Renteria-Saldana maintained the house for the purpose
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of distributing drugs. The court properly applied the two-level specific offense
characteristic.
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The judgment of the district court is affirmed.
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