Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 10-07-2021
Case Style:
United States of America v. CESAR MEDINA-CABUTO
Case Number: 06-4267
Judge: WADE BRORBY
Court: UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with a possession with intent to distribute 500 grams or more of methamphetamine charge.
Evidence presented to the district court included information that from
April through August 2005 agents with a narcotics strike force were investigating
an individual they believed was distributing large quantities of methamphetamine
in the Ogden, Utah, area. As part of that investigation, agents also began
conducting surveillance of two other individuals, Victor Rios-Chavez and Jaime
Olivarria-Lora. An informant advised agents that Mr. Rios-Chavez and Mr.
Olivarria-Lora had received a large shipment of methamphetamine which they
were transporting from California to West Valley City, Utah, where they intended
to dilute the drug and sell it. Evidence also later disclosed the defendant, Mr.
Medina-Cabuto, traveled from California to Utah with Mr. Rios-Chavez and Mr.
Olivarria-Lora.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 2
While the presentence report seems to contradictorily state that Mr. 1
“Medina” was found both in the garage and in the house, a review of the record
clarifies that both Mr. Medina-Cabuto and Mr. Solis-Medina were, in that
instance, referred to as Mr. “Medina,” but that Mr. Medina-Cabuto was found in
the garage and Mr. Solis-Medina was found in the living room of the house.
-3-
Agents performed surveillance on a residence where the informant believed
the methamphetamine would be delivered. During their surveillance, agents
witnessed Mr. Rios-Chavez arrive; later, Mr. Olivarria-Lora and Mr. MedinaCabuto arrived and carried multiple heavy items into the house. The informant
then helped purchase items needed to cut the methamphetamine; assisting him
was Rafael Solis-Medina, an individual described as the “muscle” of the
operation, who was known to use force to collect money for the drug operation.
Agents then executed a search warrant on the residence, where they found
Mr. Medina-Cabuto and Mr. Olivarria-Lora in the garage, together with thirteen
pounds of methamphetamine drying on a horizontal glass window. In the garage 1
they also discovered various items used to “cut” methamphetamine, including
MSM, a fan, a hot plate, rubber gloves, towels, denatured alcohol, scales, bags,
and a knife with residue on it. The other individuals were found in the house; in
addition, in one upstairs bedroom, agents located documents in the names of both
Mr. Olivarria-Lora and Mr. Rios-Chavez, as well as three loaded handguns and
ammunition on a shelf in a closet. An additional fifty rounds of ammunition for
one of the firearms were discovered in a closet in the main hallway of the house.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 3
-4-
In the laundry room, agents also recovered a heat-sealed bag containing a large
amount of methamphetamine. After conducting a lab analysis, the government
concluded the methamphetamine found in the garage totaled 296.4 grams and the
methamphetamine found in the laundry room totaled 303.8 grams.
Following his indictment for possession of methamphetamine with intent to
distribute, Mr. Medina-Cabuto entered into a written plea agreement in which he
agreed to plead guilty to possession with intent to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). In exchange for his
guilty plea, the government agreed not to charge him with a gun offense or to
seek an indictment for illegal reentry and also agreed to recommend a sentence at
the low end of the Guidelines sentencing range. In his statement in advance of
his guilty plea, Mr. Medina-Cabuto stipulated that during the search of the
residence agents recovered approximately 600 grams of methamphetamine which
belonged to him and his co-defendants and that they intended to sell the
methamphetamine; he further admitted that, “either [as] a principal or as an
accomplice,” he “knowingly and intentionally possessed 500 grams or more of ...
methamphetamine with intent to distribute.” At his plea hearing, Mr. MedinaCabuto pled guilty, again acknowledging the 600 grams of methamphetamine
belonged to him and his co-defendants and that they intended to sell or distribute
it.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 4
-5-
Following the district court’s acceptance of Mr. Medina-Cabuto’s guilty
plea, a probation officer prepared a presentence report, calculating his base
offense level at 36 based on the stipulated drug type and amount of at least 500
grams but less than 1.5 kilograms of methamphetamine. The probation officer
also recommended a two-level increase in the offense level for possession of a
dangerous weapon under U.S.S.G. § 2D1.1.(b)(1), which in this case involved
recovery of firearms; he also recommended a three-level reduction in the offense
level for Mr. Medina-Cabuto’s acceptance of responsibility. With a total offense
level of 35 and a criminal history category of I, the resulting advisory Guidelines
range calculation totaled 168 to 210 months imprisonment. The probation officer
also pointed out ten years was the statutory minimum sentence for Mr. MedinaCabuto’s offense.
Thereafter, Mr. Medina-Cabuto filed objections to the presentence report,
which included an argument against the two-level offense increase for possession
of a firearm, based on his argument he: 1) arrived at the Utah residence only
three hours before the search; 2) was downstairs (in the garage) when agents
found the guns in the upstairs bedroom of another defendant; and 3) was unaware
of the presence of firearms in the home. He also argued against the Guidelines
range of 168 to 210 months imprisonment, stating the minimum statutory sentence
of ten years was the proper sentence under 18 U.S.C. § 3553.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 5
The government further explained the presence of a gun would be 2
foreseeable to Mr. Medina-Cabuto based on: 1) the large quantity and level of
drug distribution, which in this case involved drugs valued at $300,000 in their
uncut form; 2) a reasonable presumption that those involved in the distribution
scheme would protect their drug assets by arming themselves; 3) the fact Mr.
Solis-Medina was present at the house for protection of the drug operation; 4) the
fact Mr. Medina-Cabuto was involved with the large California drug cartel
supplying the drugs found; 5) Mr. Medina-Cabuto’s presence in the Utah
residence at the same time as the drugs and firearms; and 6) the unlikelihood
others would allow him into a residence with such a large quantity of drugs and
drug cutting paraphernalia if he did not have a significant role in the drug
enterprise.
-6-
At the sentencing hearing Mr. Medina-Cabuto again objected to application
of the firearm enhancement, arguing in part that he should not be tagged with a
gun located in a house he entered only a couple of hours earlier. In turn, the
government explained § 2D1.1 only requires a showing of mere proximity of the
guns to the drugs and a reasonable foreseeability firearms would be involved or
possessed by others in distribution of those drugs, regardless of whether a
conspiracy is charged.2
Following the parties’ arguments, the district court applied the firearm
enhancement to the sentence, determining Mr. Medina-Cabuto could reasonably
foresee the presence of firearms in the residence in connection with the protection
of the large quantity of drugs he pled guilty to distributing. It then imposed a
sentence of 168 months imprisonment, concluding such a sentence was
appropriate, given the seriousness of the drug offense.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 6
-7-
II. Discussion
A. Firearm Enhancement
Mr. Medina-Cabuto now appeals his 168-month sentence, based in part on
his argument the district court’s enhancement of his sentence for gun possession
under U.S.S.G. § 2D1.1 violated Booker. In so arguing, he suggests: 1) he did
not admit to possession of any guns; 2) he arrived at the home only a few hours
before the search and was on the bottom floor of the residence when the gun was
found in a co-defendant’s bedroom on the upper floor; 3) no evidence proves he
brought drugs into the house; 4) he was not mentioned in any of the reports
concerning the investigation; 5) no reports or other documents show he possessed,
used, handled, or was present around the firearms; 6) the probation officer
submitted no information to support the gun possession enhancement, and,
instead, the government asked the district court to make “a lot of” inferences from
the evidence presented to apply such an enhancement; 7) no jury determined he
possessed a gun; and 8) Booker prevents a judge from making such a finding.
We begin our discussion with our standard of review and the applicable
legal principles. “Even after Booker, when reviewing a district court’s
application of the Sentencing Guidelines, we review legal questions de novo and
... any factual findings for clear error, giving due deference to the district court’s
application of the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289,
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 7
-8-
1295 (10th Cir. 2006) (quotation marks and citations omitted). The Sentencing
Guideline at issue, § 2D1.1(b)(1), provides for a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed” during the drug
trafficking offense, and reflects the “increased danger of violence when drug
traffickers possess weapons.” U.S.S.G. § 2D1.1, cmt. n.3. Commentary to
§ 2D1.1(b)(1) further states that the enhancement applies “if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” Id. Generally, we have held possession under § 2D1.1(b)(1) is
“satisfied by showing mere proximity to the offense.” United States v. Smith, 131
F.3d 1392, 1400 (10th Cir. 1997). “This burden is satisfied when the government
demonstrates that a temporal and spacial relation existed between the weapon, the
drug trafficking activity, and the defendant.” United States v. Williams, 431 F.3d
1234, 1237 (10th Cir. 2005) (quotation marks and citation omitted), cert. denied,
547 U.S. 1091 (2006). As a result, the government need only show the weapon
was found in the same location where drugs or drug paraphernalia are stored, or
in the general vicinity of where part of the drug activity occurred. See id.
Nothing in our case law or the Guidelines requires that the drugs and firearms be
found together in the same room for a firearm enhancement to apply.
In addition, “Section 1B1.3(a)(1) directs courts applying a specific offense
characteristic such as 2D1.1(b)(1) to consider ‘all acts and omissions committed
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 8
-9-
or aided and abetted ... that occurred during the commission of the offense,’”
which includes “‘conduct of others in furtherance of the execution of the jointlyundertaken criminal activity that was reasonably foreseeable by the defendant,’
regardless whether a conspiracy is charged.” United States v. McFarlane, 933
F.2d 898, 899 (10th Cir. 1991) (quoting U.S.S.G. § 1B1.3(a)(1)(A) and (B) &
cmt. n.2). “Together these provisions permit sentencing courts to attribute to a
defendant weapons possessed by his codefendants if the possession of weapons
was known to the defendant or reasonably foreseeable by him.” Id. And finally,
we have long recognized firearms are “tools of the trade” for drug traffickers.
See United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991).
In this case, the firearms and ammunition were located in the same
residence at the same time as large amounts of methamphetamine, cutting
paraphernalia, and other drug related items, making it clear the entire residence,
including the garage, was the locus of a large drug-trafficking operation. Because
the guns and ammunition were found in the same residence or vicinity as this
large-scale drug-trafficking operation and were clearly accessible to the codefendants involved, we cannot say the district court erred in its determination the
drugs and other paraphernalia were in the proximity of the firearms for the
purpose of applying the enhancement.
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 9
-10-
Having determined the requisite proximity existed between the contraband
and firearms, we turn to the foreseeability issue to determine if Mr. MedinaCabuto could have reasonably foreseen that others involved in the large drugtrafficking operation would possess firearms. The evidence presented indicates
Mr. Medina-Cabuto was directly involved or played a significant role in the
instant drug operation, as further corroborated by his stipulation that the 600
grams of methamphetamine belonged to him and his co-defendants and that they
intended to sell or distribute it. Based on his significant role or participation in
the operation, together with the volume and open visibility of the
methamphetamine and cutting materials, it would be clear to Mr. Medina-Cabuto,
even if he arrived at the residence only hours before, that it was the locus of a
rather large drug-trafficking operation and that firearms would likely be used to
protect such an operation. Based on these circumstances, the district court did not
commit clear error in determining Mr. Medina-Cabuto could reasonably foresee
that others participating with him in the jointly-undertaken criminal activity
would possess firearms for the protection of those drugs.
Moreover, Mr. Medina-Cabuto has not offered any evidence or reasoning
sufficient to demonstrate the firearms were unconnected to his criminal conduct.
His argument he did not admit to possession of any guns and that no evidence
showed he possessed or handled the guns is immaterial under the applicable law,
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 10
-11-
as is the fact that he was not found in the same room where the firearms were
located. Given he pled guilty to the offense charged, we also find unavailing and
immaterial his argument that no evidence proved he brought drugs into the house.
While he suggests the probation officer submitted no information to support the
gun possession enhancement, the record on appeal is replete with evidence
supporting the district court’s application of the enhancement.
Next, we reject Mr. Medina-Cabuto’s argument a jury, and not a judge,
must make factual findings in applying the firearm enhancement. We have held
Booker permits enhancement of a sentence on the basis of judicial fact-finding by
a preponderance of the evidence when the Guidelines are applied, as they were
here, in an advisory manner. See United States v. Bustamante, 454 F.3d 1200,
1202 (10th Cir. 2006). Having rejected Mr. Medina-Cabuto’s argument the judge
improperly made factual findings in applying the firearm enhancement, we also
disagree with his assertion it impermissibly drew inferences from the evidence
presented. We have long held the weight to be given evidence, together with the
inferences, deductions, and conclusions to be drawn from such evidence, is a
matter most appropriate for resolution by the district court. See United States v.
Guerrero, 472 F.3d 784, 789 (10th Cir. 2007); United States v. Walker, 933 F.2d
812, 815 (10th Cir. 1991).
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 11
-12-
B. Presumption of Reasonableness
We now turn to Mr. Medina-Cabuto’s argument that in reviewing the
reasonableness of his sentence under the sentencing factors set out in 18 U.S.C.
§ 3553(a), this court cannot, on appellate review, apply a presumption of
reasonableness to his sentence, which is within the advisory Guidelines range.
We note that in this case the district court sentenced Mr. Medina-Cabuto within
the Guidelines range and he does not claim the Guidelines range itself was
improperly calculated, but only that the application of the firearm enhancement
under § 2D1.1 was unreasonable. Having rejected the latter contention, we turn
to the uncontested calculation of his sentence and our standard of review.
In reviewing Mr. Medina-Cabuto’s sentence, we review for reasonableness
the sentence’s length, as guided by the factors in 18 U.S.C. § 3553(a). See United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). We
recognize that the district court has significant discretion in sentencing, and our
review for reasonableness is a review for an abuse of discretion. See Rita v.
United States, ___ U.S. ___, 127 S. Ct. 2456, 2465 (2007); United States v.
Garcia-Lara, ___ F.3d ___, 2007 WL 2380991, at **3-4 (10th Cir. Aug. 22,
2007). In conjunction with this standard of review, our binding precedent has
been to give sentences “properly calculated under the Guidelines ... a rebuttable
presumption of reasonableness.” Kristl, 437 F.3d at 1054. The Supreme Court
Appellate Case: 06-4267 Document: 010136359 Date Filed: 09/20/2007 Page: 12
-13-
recently affirmed our application of the presumption of reasonableness to withinGuidelines sentences. See Rita, ___ U.S. at ___, 127 S. Ct. at 2465; see also
Garcia-Lara, 2007 WL 2380991, at **3-4.
Having considered Mr. Medina-Cabuto’s sentence under our standard of
review and binding precedent, we find no abuse of discretion in the 168-month
sentence imposed, which is within the advisory Guidelines range of 168 to 210
months imprisonment. The district court in this case explicitly considered the
factors in § 3553(a), and we continue to apply a presumption of reasonableness to
Mr. Medina-Cabuto’s sentence, which is within the correctly-calculated
Guidelines range, and which he has not rebutted. See Kristl, 437 F.3d at 1053-55.
Outcome: For the foregoing reasons, we AFFIRM Mr. Medina-Cabuto’s sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: