United States v. Sanchez-Cruz

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FIDEL SANCHEZ-CRUZ, Defendant-Appellant.

No. 23-1528

United States Court of Appeals, Ninth Circuit

October 10, 2024

NOT FOR PUBLICATION

Argued and Submitted September 11, 2024 San Francisco, California

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge Presiding

Before: BYBEE and MENDOZA, Circuit Judges, and M. FITZGERALD District Judge.^[**]

MEMORANDUM ^[*]

FITZGERALD, DISTRICT JUDGE

Fidel Sanchez-Cruz challenges two sentencing enhancements applied by the district judge at his sentencing. We review a district court's application of the Sentencing Guidelines to the facts of a given case for abuse of discretion, and its factual findings for clear error. United States v. Hernandez-Guerrero, 633 F.3d 933, 935 (9th Cir. 2011). We have jurisdiction under 28 U.S.C. § 1291 and affirm the application of both enhancements.

1. The district judge appropriately applied the aggravating role enhancement. Under United States Sentencing Guidelines Manual ("U.S.S.G.") § 3B1.1(a), four levels are added to the defendant's base offense level if "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a) (U.S. Sent'g Comm'n 2021). The leader enhancement is applicable if there is "evidence that the defendant exercised some control over others involved in the commission of the offense or was responsible for organizing others for the purpose of carrying out the crime." United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (quotations omitted). An "important role" or "conduct that reflects a high degree of culpability" will not be enough. Id. "There must, however, be evidence in the record that would support the conclusion that the defendant exercised the necessary level of control." Id.

Mr. Sanchez-Cruz argues that the district judge relied on "selective excerpts" of other participants' statements when applying the aggravating role enhancement.

At sentencing, the district judge discussed post-Miranda statements from Mr. Sanchez-Cruz's co-defendants. One co-defendant said the boss was named "Cheny" and identified Mr. Sanchez-Cruz as "Cheny." Another said that the person in charge of the garden was named El Gato and identified Mr. Sanchez-Cruz as El Gato. Another stated that her boyfriend (another co-defendant) worked for Mr. Sanchez-Cruz, who was the boss, and that she knew this because she heard Mr. Sanchez-Cruz giving orders and others asking for instructions. And although multiple defendants may have equivocated during their statements, the district judge determined these statements had not been "walk[ed] back," especially considering that multiple defendants said they were concerned for their families' safety because they were speaking with officers.

The district judge also relied on photographs provided by the government prior to sentencing. In them, Mr. Sanchez-Cruz wore "civilian clothes"-a white polo shirt and jeans-while three other individuals took supplies out of the trunk of a car wearing "full camouflage fatigues, including hats." Mr. Sanchez-Cruz is seen pointing and speaking to the "workers."

Although one co-defendant walked back his statement in a signed letter, and another co-defendant, in an interview with a private investigator hired by Mr. Sanchez-Cruz's attorney, denied ever saying that Mr. Sanchez-Cruz was the boss during her interview with officers, the district judge had ample reason to apply the four-level leader enhancement.

2. The district judge appropriately applied the firearm enhancement. Under U.S.S.G. § 2D1.1(b)(1), two levels are added to the defendant's base offense level if "a dangerous weapon (including a firearm) was possessed" in connection with the charged offense. U.S.S.G. § 2D1.1(b)(1) (U.S. Sent'g Comm'n 2021). The district judge applied the firearm enhancement because officers found a 20-gauge shotgun in Mr. Sanchez-Cruz's ex-wife's Corning, California home, alongside twenty-four grams of cocaine, a digital scale, packaging materials, three bags of marijuana seeds, and nearly four pounds of marijuana. Officers found the driver's license of Mr. Sanchez-Cruz's girlfriend in the room^[1] and Mr. Sanchez-Cruz's daughter told officers that this girlfriend would sometimes stay in that room with him.

We apply U.S.S.G. § 2D1.1(b)(1) "broadly," and have concluded that the "'offense' in this context refers to the 'entire course of criminal conduct,' not just the crime of conviction." United States v. Gomez, 6 F.4th 992, 1008 (9th Cir. 2021) (quoting United States v. Willard, 919 F.2d 606, 609 (9th Cir. 1990)). "[T]he government simply bears the burden of proving that the weapon was possessed at the time of the offense." United States v. Alaniz, 69 F.4th 1124, 1126-27 (9th Cir. 2023). "The enhancement then applies unless the defendant can show it was 'clearly improbable' that the weapon was possessed in connection with the offense." Id. (quoting U.S.S.G. § 2D1.1(b)(1) cmt. n.11(A)). "Constructive possession requires the government to prove a sufficient connection between the defendant and the item to support the inference that the defendant exercised dominion and control over the item." United States v. Baldon, 956 F.3d 1115, 1127 (9th Cir. 2020) (internal quotations omitted) (cleaned up). Thus, "[e]ven when defendants were arrested miles away from the firearms stored at their homes or places of business, we held that the defendants possessed weapons during the commission of the drugtrafficking offenses for purposes of this sentencing enhancement." Gomez, 6 F.4th at 1008 (citations omitted).

Mr. Sanchez-Cruz admits that he visited his children at this residence, stayed there at times, and kept personal items in the room. He contends the government failed to prove that the shotgun was connected to him or the offense since he lived elsewhere where no firearms were found, and that others used the room in Corning and stored items there.

Even if this is true, between the drugs, equipment, ID, and daughter's statement, the district judge had ample evidence connecting the bedroom to Mr. Sanchez-Cruz and this firearm to the charged offense, and the government met its initial burden. This is different than United States v. Kelso, 942 F.2d 680 (9th Cir. 1991). Kelso was the passenger in a car driven by a codefendant. Officers searched the car and found drugs, a pistol, and ammunition behind the driver's seat. Id. at 681. We reversed the district court's application of § 2D.1.1(b)(1) to Kelso because there was no evidence Kelso, as opposed to his co-defendant, owned the gun or "was aware of its presence." Id. at 682.

Instead, this case is like United States v. Lopez-Sandoval, 146 F.3d 712 (9th Cir. 1998), where we affirmed the application of a § 2D1.1(b)(1) enhancement when officers, following their arrest of one defendant during a drug transaction, searched his residence and found a handgun, ammunition, and ID cards between a mattress and box spring in the master bedroom. Id. at 714-15. Our analysis was straightforward-since the gun was found at Lopez-Sandoval's residence, he "possessed [the] weapon[] during the commission of the drug conspiracy." Id. at 715. Although this may not have been Mr. Sanchez-Cruz's only or primary residence, there is ample evidence that he stayed in the room where the gun and drugs were found. That documents-mostly car titles-belonging to others were found there does not alter this analysis. Instead, that the gun, nearly four pounds of marijuana, and distribution materials were found in the room with these documents indicates it may have been the nerve center of the drug operation just as much as it may show that others "used" the room. The government met its burden of proving possession, and the district court did not abuse its discretion in determining as much.

Although the enhancement should not be applied when "the defendant, arrested at [his] residence, had an unloaded hunting rifle in the closet," Gomez, 6 F.4th at 1008 (quoting U.S.S.G. § 2D1.1(b)(1) cmt. n.11(A)), Mr. Sanchez-Cruz does not present any evidence that the gun was stored away in a closet or separated from the drugs and distribution equipment, or that it was "clearly improbable" he constructively possessed this gun in connection with the offense. See Alaniz, 69 F.4th at 1126-27; Baldon, 956 F.4th at 1127. Even if the gun was unloaded, that does not "make it 'clearly improbable that the weapon was connected to' the drug offense." Gomez, 6 F.4th at 1009 (citing Lopez-Sandoval, 146 F.3d at 716).

AFFIRMED.

MENDOZA, Circuit Judge, dissenting in part:

On its road to affirm Mr. Sanchez-Cruz's sentence, the majority speeds past two critical district court errors. Because the district court erred in finding that Mr. Sanchez-Cruz constructively possessed the shotgun found in the bedroom and abused its discretion in applying the firearm enhancement, I respectfully dissent.

As a threshold matter, in order to apply the two-level firearm enhancement, district courts must first determine whether the individual possessed the firearm. "The government must prove possession by a preponderance of the evidence before the court can apply" a sentencing enhancement. United States v. Baldon, 956 F.3d 1115, 1127 (9th Cir. 2020) (quotation marks and citation omitted). The Ninth Circuit has outlined various ways the government may demonstrate the nexus or relationship between the defendant and the item and, just as importantly, various instances where the government fails to meet this burden.

In United States v. Kelso, the Ninth Circuit held that "proximity" of a firearm to drugs and ammunition is...