Jose Benigno Aguilar was convicted by a jury of one count of conspiracy to distribute methamphetamine and one count of aiding and abetting the possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 18 U.S.C. § 2. He was sentenced by the district court 1 to 121 months in prison, and he appeals his conviction and sentence. We affirm.
During October 2003 Aguilar sold methamphetamine with Kelly LeGrand, Jason Hechtel, and Wade Gwynn. Aguilar resided in a trailer home with LeGrand who received information from Hechtel on November 1, 2003 about a potential buyer. When LeGrand went to meet the buyer that afternoon, he was robbed of his methamphetamine and cash. After the robbery LeGrand summoned Hechtel and Gwynn to his trailer where he and Aguilar blamed Hechtel for the robbery. They demanded $2,000 or sufficient collateral before either Hechtel or Gwynn would be allowed to leave the trailer. Gwynn provided his truck title as collateral and was then permitted to go home, but Hechtel had no collateral to give.
Aguilar and LeGrand forced two tattoos on Hechtel, and LeGrand beat him on Aguilar’s orders. Aguilar threatened to blow his head off and made threats against his family although Hechtel did not see a firearm inside the trailer. At one point Aguilar held Hechtel to the floor by stepping on his chest, and he also taunted him by tapping him on the chest with a spear and pointing it under his arm. Eventually Aguilar shaved Hechtel’s head and one eyebrow.
The next day Aguilar released Hechtel with instructions to return to the trailer with $2,000, and a few days later Gwynn and Hechtel returned and gave Aguilar the money. After this incident, Hechtel refused to answer calls from LeGrand and Aguilar, but Gwynn continued to sell methamphetamine for LeGrand. On three separate occasions, November 13, 19, and 26, Gwynn received methamphetamine from LeGrand, sold it to an undercover officer, and paid LeGrand with money from the sale. On November 26 the police executed a search warrant at Aguilar’s trailer where they recovered approximately 70 grams of methamphetamine and a spear.
Aguilar and LeGrand went to trial together, and the district court denied Le-Grand’s pretrial motion — in which Aguilar joined — to preclude the government from introducing evidence concerning the alleged kidnaping, beating, and involuntary tattooing of Hechtel. After the jury returned a guilty verdict against each defendant for conspiring to distribute methamphetamine and possession of methamphetamine with intent to distribute, Aguilar and LeGrand filed motions for judgment of acquittal and for a new trial. The motions were denied.
At Aguilar’s resentencing hearing,
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the district court applied a two level enhancement under U.S.S.G. § 2Dl.l(b)(l) for possessing a dangerous weapon in connection with the offense, and another two level enhancement under U.S.S.G. § 3A1.3 for physically restraining a victim in the course of the offense. Aguilar’s total adjusted offense level of 30, together with his criminal history category I, resulted in a sentencing range of 97 to 121 months.
On appeal Aguilar argues that the district court erred by admitting irrelevant and prejudicial evidence that he restrained, beat, and tattooed Hechtel in an effort to obtain payment for stolen drugs; by denying his motions for judgment of acquittal and a new trial because the evidence at trial was insufficient to support the verdict; and by applying sentencing enhancements under §§ 2Dl.l(b)(l), 3A1.3. In
United States v. LeGrand,
Aguilar challenges the two level increase of his base offense level pursuant to § 2Dl.l(b)(l), arguing that the district court erred in determining that a spear is a dangerous weapon and that Aguilar used the spear in furtherance of the drug conspiracy. Aguilar also argues that his actions to collect the “debt” owed by Hechtel were not related to the drug conspiracy. The government contends that the district court did not clearly err in applying the enhancement. We review a district court’s interpretation and application of the guidelines de novo and its factual findings regarding enhancements for clear error.
United States v. Jourdain,
For the dangerous weapon enhancement in § 2D1.1(b)(1) to apply, “[t]he government has to show by -a preponderance of the evidence that a [dangerous weapon] was present and that it was probably connected to the drug offense.”
United States v. Dillard,
Hechtel testified at trial that Aguilar accused him of setting up LeGrand for the robbery of his methamphetamine and that Aguilar used the spear to threaten him in an attempt to recover the value of the stolen drugs. We conclude the government carried its burden to support the enhancement because it is not clearly improbable that the spear was connected to Aguilar’s drug conspiracy activities.
See United States v. Guel,
Aguilar also challenges the district court’s two level enhancement for restraining the victim pursuant to § 3A1.3, arguing that there was no evidence that Hechtel was physically restrained in the trailer because he voluntarily entered and was at all times free to leave. Aguilar contends that the threats of retribution alleged by ’Hechtel do not fit within the guideline definition of physical restraint. The government disagrees, arguing that it was. the fear instilled by Aguilar that kept Hechtel in the trailer and that the district court’s determination was not erroneous.
United States Sentencing Guidelines § 1B1.1 cmt. n. 1(K) defines physical restraint as forcible restraint, “such as being tied, bound, or locked up.”
See
§ 3A1.3 cmt. n. 1 (referring to § IB-1.1 commentary for definition of “physically restrained”);
see also Arcoren v. United States,
Accordingly, we affirm the judgment of the district court.