UNITED STATES OF AMERICA v. JUAN FLETCHER GORDILLO
No. 18-12095
United States Court of Appeals, Eleventh Circuit
April 17, 2019
D.C. Docket No. 0:17-cr-60312-JIC-1
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Appeal from the United States District Court for the Southern District of Florida
(April 17, 2019)
Before MARCUS, BLACK and WALKER,* Circuit Judges.
Juan Fletcher Gordillo pled guilty to a single count charging him with possession of a firearm and ammunition by a prohibited person -- an alien unlawfully in the United States -- in violation of
I.
Defendant Juan Fletcher Gordillo (“Gordillo“) is a Guatemalan citizen who initially entered the United States on a non-immigrant visitor visa on July 18, 2004. Gordillo‘s visa expired on January 17, 2006. He applied for a visa extension on January 19, 2006, and though his application was denied, he remained in the United States without authorization. On November 27,
Department of Homeland Security (“DHS“) Investigations special agents responded to the scene, and requested permission from Gordillo and his wife to conduct an additional search of the residence. Both Gordillo and Cortez consented to the search, and Gordillo admitted that there was а box of ammunition in the kitchen. During the search, the agents located 50 cartridges of 9mm pistol rounds in the kitchen.
Gordillo was transported to the DHS Investigations office in Fort Lauderdale and read his Miranda rights. After signing a waiver of those rights, he was interviewed and admitted to possessing the firearms and ammunition with the knowledge that he was not authorized to purchase or possess firearms in the United States due to his immigration status.
II.
On December 15, 2017, a grand jury sitting in the Southern District of Florida indicted Gordillo in one count with possession of a firearm and ammunition by a prohibited person -- an alien unlawfully in the United States -- in violation of
The Presentence Investigation Report (“PSI“) calculated Gordillo‘s base offense level at 20, pursuant to the Sentencing Guidelines
Gordillo objected to the PSI on the ground that his crime did not involve a semiautomatic weapon within the meaning
Gordillo urged that his base offense level should instead be calculated under
At the sentencing hearing, DHS Investigations Agent Clancy Dunnigan testified that the two officers who conducted the initial protective sweep of the home told Dunnigan that the magazines were “found with the weapon.” Dunnigan took this to mean the magazines were found either in the gun case with the firearm, or in the range bag some eight feet away. On cross examination, Agent Dunnigan conceded that he didn‘t know if the magazines were found in the gun case and that he was estimating the distance based on the small room size (what he thought was approximately ten feet). Dunnigan said the gun was in a hard case with hard clip locks, which were clipped, though he didn‘t know if they were actually locked. Gordillo also testified at the hearing that the magazines were in the gun-range bag separate from the firearm, and that the bag was “about 10 feet away” from the gun case. Gordillo explained that the gun itself was locked, though he was not asked nor did he assert that the hard case was locked too. Gordillo‘s counsel argued that because “it was a locked gun, possibly the case it was in was locked, and the magazine was found separate from that weapon,” the two were not in “close prоximity” and therefore could not trigger the increased base offense level.
The district court varied downward slightly, but overruled Gordillo‘s objection to the base offense level. The sentencing judge found by a preponderance of the evidence that the AR-15 is a semiautomatic weapon capable of accepting a large-capacity magazine and that the magazine was found, “in the defendant‘s own word[s] in his testimony, 10 feet away from the AR-15.” The court concluded that the magazine was in “close proximity” to the firearm for Guidelines purposes, and sentenced Gordillo to a 24-month term of
This timely appeal ensued.
III.
“We review the district court‘s application of the Sentencing Guidelines de novo and its findings of fact for clear error.” United States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000). “Clear error review is deferential, and ‘we will not disturb a district court‘s findings unless we are left with a definite and firm conviction that a mistake has been committed.‘” United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016) (quoting United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010)).
“When interpreting the Guidelines, a ‘guideline‘s meaning is derived first from its plain language and, absent ambiguity, no additional inquiry is necessary.‘” United States v. Cruz, 713 F.3d 600, 607 (11th Cir. 2013) (quoting United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010)). “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guidеline.” Id. (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Moreover, “[o]ur interpretation of the sentencing guidelines and accompanying commentary is governed by traditional rules of statutory construction.” United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004).
The Guidelines yield a base offense level of 20 where the defendant was a prohibited person at the time of the offense and the offense “involved a . . . semiautomatic firearm that is capable of accepting a large capacity magazine.” The Guidelines Application Notes define “semiautomatic firearm that is capable of accepting a large capacity magazine” as “a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine оr similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.”
There is no dispute either that Gordillo was a “prohibited person” at the time of the offense or that there was no magazine physically attached to the firearm, making subsection (A) of Application Note 2 inapplicable. The only question for us to decide, then, is whether a high-capacity magazine in a bag is in “close proximity” to a locked firearm in a case ten feet away in the same room. This Court has never analyzed the meaning of “close proximity” in
The current version of
The 2006 amendments were intended to clarify that the enhanced base offense levels continued to apply in the wake of the sunset of the federal assault weapons ban in 2004. Explaining the “reason for amendment,” the Commission noted that it had “received information regarding inconsistent application as to whether the enhanced base offense levels apply to these types of firearms in light of the ban‘s expiration.”
Although we have never addressed the meaning of “close proximity” in the context of
We have discussed proximity between firearms and drugs in a number of cases, but have never explicitly elaborated on its meaning. Rather, in each of those cases we have applied the phrase‘s plain meaning and looked to both the physical distance between the firearm and the drugs or drug-related items and the accessibility of the firearm. See, e.g., United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009) (analyzing whether a prior conviction would have constituted a violation of
Because “[o]ur interpretation of the sentencing guidelines and accompanying commentary is governed by traditional rules оf statutory construction[,] . . . [w]here the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both.” Perez, 366 F.3d at 1182; see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 170 (2012) (describing the canon of consistent usage). The phrase “close proximity” means the same thing in Application Note 2 (semiautomatic weapons) as it does in Application Note 14 (connection between drugs and guns). This presumption is all the more approрriate where the language appears not in two different guidelines, but within the Application Notes of the same guideline section. Indeed, Application Notes 2 and 14 using the phrase “close proximity” were added simultaneously, in the 2006 amendments. There is no reason to believe the Sentencing Commission meant anything other than the plain meaning afforded “close proximity” in both situations.
At bottom, physical distance is one component of accessibility, and in both the guns and drugs context and in the semiautomatic weapon and high-capacity magazine context, we are looking for a close connection between the items. Physical distance, a component of accessibility, is a powerful indicator that two items are related. Is the firearm close enough and accessible enough to have the potential to be used in the drug crime? And is the high-capacity magazine close enough and
Ultimately, we think that, as its plain language suggests and as our analysis of proximity in the related cases dealing with guns and drugs indicates, “close proximity” encompasses both physical distance and accessibility. In both contexts, we are looking for a close connection between the items. Physical distance alone may not dispositive. If, for example, a semi-automatic weapon were found in one home of a duplex apartment and a high-capacity magazine in the separately owned home next door just on the other side of a shared wall, even very close physical distance would not necessarily place those items in close proximity for Guidelines purposes. Physical proximity is nеcessary to find accessibility, but physical distance may not end the story.
Under a definition of “close proximity” that accounts for both physical distance and accessibility, a semiautomatic weapon -- even a locked firearm inside a case -- is in “close proximity” to a high-capacity magazine in a bag no more than ten feet away in the same small bedroom. We have little doubt that ten feet is close physical proximity. Relying on the idea of accessibility (but nevertheless rejecting any analogy to the guns and drugs cases), Gordillo argues that the critical facts militating against a finding of close proximity are that the gun was locked and in a case and the magazines were found in a separate bag. He made no specific claim to the district court -- and indeed none in his briefing to us -- about how long it would take to retrieve thе magazines from the bag, unlock the case, and insert a magazine into the firearm. And he does not claim that those high-capacity magazines were not intended for use in the Colt AR-15. The firearm and magazines were ten feet apart in the same room. They were both physically proximate and readily accessible.
Under Gordillo‘s preferred reading, however, anytime a semiautomatic weapon is locked аnd in a gun case and a high-capacity magazine is in a separate container, the enhanced base offense level in the Guidelines would be inapplicable. But the Guidelines are not a safe-storage law. They are intended to punish firearms crimes involving particularly dangerous types of weapons. Gordillo does not dispute that those four high-capacity magazines were in physical proximity to the firearm оr that they were actually intended for use in that firearm. His safe-storage practices notwithstanding, Gordillo is subject to the enhanced base offense level under
We can find no basis on which to overturn the district court‘s factual findings regarding the proximity of the AR-15 to the magazines, nor its legal conclusion that the relationship of the two constituted “close proximity” for Guidelines’ purposes. Accordingly, we affirm.
AFFIRMED.