United States v. Carillo-Ayala, 11–14473.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtMOLLOY
Citation713 F.3d 82
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Arturo CARILLO–AYALA, Defendant–Appellant.
Docket NumberNo. 11–14473.,11–14473.
Decision Date22 March 2013


Stephanie Gabay–Smith, Suzette A. Smikle, Christopher Conrad Bly, Dahil Dueno Goss, Lawrence R. Sommerfeld, Sally Yates, U.S. Attys., Atlanta, GA, for PlaintiffAppellee.

Michael H. Saul (Court–Appointed), Marietta, GA, for DefendantAppellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and COX, Circuit

Judges, and MOLLOY,* District Judge.

MOLLOY, District Judge:

This case presents an issue of first impression in this Court concerning the “safety valve,” but one the trial judge noted is an all too frequent conundrum for a sentencing judge. When a defendant stands convicted of a drug offense carrying mandatory minimum terms of imprisonment and supervised release, the sentencing judge may impose a sentence below the otherwise mandatory minimum terms if the defendant meets five criteria. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Only one of the five criteria is relevant here. It requires the defendant to show that he “did not ... possess a firearm ... in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).

Defendant Arturo Carillo–Ayala admits he was a drug dealer and admits he sold firearms, but his ostensible business plan was “Guns and Drugs Sold Separately.” The question before us is whether a drug-dealer who also sells firearms to a drug customer possesses those firearms “in connection with” the charged drug offense. The answer is “not necessarily.”

I. Background

Carillo–Ayala, with three co-defendants, was named in two counts of a ten-count indictment alleging various drug and weapons offenses. Carillo–Ayala (Carillo) was charged with one count of conspiring to possess with intent to distribute a substance containing at least five grams of methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); and one count of being an illegal alien in possession of a firearm, a violation of 18 U.S.C. § 922(g)(5) (Count 10). He pled guilty to both counts without a plea agreement. On Count 1, he faced a mandatory minimum sentence of five years. 21 U.S.C. § 841(b)(1)(B)(viii).

A. Facts

The United States Probation Office prepared a presentence report. The cast of characters involved the defendant and two others. Without objection from either party, the probation officer described the pertinent conduct as follows. Through a confidential informant, co-conspirator Domingo Adame–Najera (“Adame”) met an undercover agent (“Jones,” a pseudonym) on July 21, 2009. Jones expressed interest in purchasing firearms. Adame and Jones engaged in a series of sales, involving rifles, shotguns, handguns, ammunition, and the repeated promise of assault rifles. Jones frequently followed Adame to other locations to obtain the weapons.

On July 30, 2009, in the midst of another of their bargaining sessions about guns, Adame asked Jones whether he would like to purchase three ounces of heroin. Jones asked whether methamphetamine was available. Adame replied that it was, but it was not good quality. He added that he could get “good stuff” from Mexico. Jones reverted to the heroin and offered to follow Adame to the location where it was available. Adame balked at that proposal, just as he did at taking Jones to the location of an AK–47 the two had discussed. But they completed another firearms sale at a neutral site. Although Jones reiterated his interest in the heroin, Adame told him it had “sat” for a long time and “did not look right.”

Over the next two months, Jones continued to buy firearms, heroin, and high-grade methamphetamine from Adame and another co-conspirator, Marcos Armendariz. At one point, Adame asked Jones why he “wanted all these guns.” In his answer, Jones said that he had friends ‘over there,’ who used them, and stated he would be traveling for a couple of weeks to California and near ‘the line’ (Mexico).” Adame at some point told Jones that his supplier wanted to meet him “to assure himself” that Jones “could be trusted.” “Trust” was a frequent topic of conversation between Adame and Jones. They also talked about sales of dynamite, blasting caps, hand grenades, and assault rifles, but none of these ideas reached fruition.

On September 27, 2009, Adame, who was working in Alabama and planning to move to Las Vegas, introduced Carillo to Jones. Jones asked Carillo whether he was the heroin supplier. Carillo said he was. The three men visited about drug prices and firearms but completed no sales that day.

On September 30, Carillo called Jones to talk about methamphetamine and gun purchases, and they agreed to meet the next day. On October 1, Carillo asked Jones if he would be interested in a machine gun. Jones confirmed his interest. When they met, however, Carillo didn't bring either the machine gun or the methamphetamine to the foray. Instead, he sold Jones a revolver. The two men talked over blasting caps and dynamite, and then arranged another meeting to complete a methamphetamine deal.

On October 6, 2009, Carillo called Jones and offered to sell him five assault rifles at $650 each. They haggled and then Jones counter-offered $550 for the guns. Carillo said he would talk to the owners and call Jones back. On October 11, 2009, Jones and Carillo once again tossed around firearm prices and quantities of methamphetamine and agreed to meet on October 14, 2009. On that day, Carillo sold Jones a rifle, a shotgun, and 58.6 grams of methamphetamine, divided among three baggies.

On October 27, 2009, Carillo again touched base with Jones, saying he still had three assault rifles for sale. Jones expressed interest and asked about heroin, as well. Carillo responded that he had a small quantity but could not quote a price. He also said each rifle was still priced at $650. They did not come to terms, so no agreement was reached. The relationship ended at this point.

B. Offense Level

For purposes of calculating the base offense level,1 the quantities of methamphetamine and heroin Carillo sold to Jones were converted into their respective marijuana-equivalents. U.S.S.G. § 2D1.1 cmt. n. 10(B), (D). Carillo was held responsible for a total of 117.2 kilograms of marijuana, corresponding to a base offense level of 26. U.S.S.G. § 2D1.1(c)(7). The district court properly concluded that a two-point upward adjustment in the guideline calculation was warranted because “a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Consequently, Carillo's adjusted offense level was 28. He secured a three-point reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, leading to a total offense level of 25. With a criminal history category of I, his advisory Guideline range was 57–71 months. But, under 21 U.S.C. § 841(b)(1)(B)(viii), he faced a statutory mandatory minimum of five years because of the amount of methamphetamine he sold to Jones.2

Carillo did not object to the two-point enhancement under U.S.S.G. § 2D1.1(b).3 Even so, he did argue that he qualified for the safety valve. He insisted that, although he possessed a firearm, there was no “connection,” § 5C1.2(a)(2), between his sales of methamphetamine and heroin, on the one hand, and his discreet sales of firearms, on the other. He claims he could have accomplished either sale without the other; in fact, he did exactly that on October 1, 2009, when he sold Jones two firearms but no drugs.4

The United States argued, in both the district court and on appeal, that the safety valve did not apply because Carillo's possession of firearms was “relevant conduct.” It also argues that, because there was an instance when firearms were “there present with the drug transaction,” the safety valve could not apply.

The district court recognized there was something to Carillo's premise that simply possessing firearms, or even selling firearms, did not establish a connection with his drug conviction. But the judge also expressed frustration with the multiplicity of standards applying to a drug defendant's possession of a firearm:

[T]his firearm enhancement is one that causes me more problems than probably any other one in the guidelines. It's just, it's all over the board. It's everything from “present” to “in furtherance of” to “in connection with,” and I'm not sure they make a whole lot of clear distinctions about that. I would certainly recommend to the Sentencing Commission that this could be cleaned up a whole lot if they wanted to make it easier for judges who actually have to make decisions on these things.

But, having expressed his exasperation, the district court looked to the events of October 14, 2009—when Carillo sold Jones a rifle, a shotgun, and three baggies of methamphetamine—as “the key,” “an instance where what is contemplated ... does come into play and preclude him from getting the safety valve.” The judge then considered the factors in 18 U.S.C. § 3553(a), and sentenced Carillo to a mandatory minimum of 60 months in prison on Count 1, concurrently with 60 months on Count 10 of the Indictment, to be followed by five years' supervised release.

We are now asked to decide whether the thoughtful reasoning of the district judge was error when the court found a “connection” between Carillo's possession of firearms and the drug offense of which he was convicted.

II. Analysis

We review a district court's factual findings under the Sentencing Guidelines for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.1997); 18 U.S.C. § 3742(e). The district court's legal interpretation of statutes and Sentencing Guidelines is reviewed de novo. United States v. Williams, 340 F.3d 1231, 1238–39 (11th Cir.2003). Here, we articulatea “legal standard or principle” for district courts to apply in determining whether a defendant possessed a firearm in connection with a drug offense under §...

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