United States v. Patricio Renteria-Saldana
755 F.3d 856
8th Cir.
2014
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UNITED STATES of America, Plaintiff-Appellee, v. Patricio RENTERIA-SALDANA, Defendant-Appellant.

No. 13-1542.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 21, 2013. Filed: June 23, 2014.

754 F.3d 856

conjecture, but one that is insufficient to meet the requirement that the occupation being restricted or banned “bear a reasonably direct relationship” to the “conduct relevant to the offense of conviction.” U.S.S.G. § 5F1.5(a); cf.

(reasoning, on the basis of the relevant statute and guidelines, that a court that did not explain how the occupational restriction related to the offense of conviction had erred, and that “[t]he mere fact [Defendant] engaged in such conduct while employed as an executive does not establish the necessary connection between the conduct and his management/executive positions“). The court also noted Farmer‘s spotty tax payment history, stating: “He hasn‘t paid anything into Social Security other than $1,200. He‘s 48 years old. He‘s going to have nothing paid in as he becomes a senior citizen.” But Farmer‘s offense of conviction is extortion rather than a tax offense. Farmer‘s age and status with regard to Social Security seem irrelevant to whether there was a “reasonably direct relationship” between his extortionate activities and his self-employment.

Because the district court‘s explanation did not satisfy the requirements of 18 U.S.C. § 3583(d) and U.S.S.G. §§ 5D1.3(e)(4), 5F1.5(a), we also vacate this special condition and remand for further consideration.

III

We VACATE Special conditions 4 and 5 of Farmer‘s terms of supervised release and REMAND for further proceedings consistent with this opinion.

Michael F. Maloney, AFPD, on the brief and argued, ‍​​​​​​​​​​​​‌​​​‌​‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌​​​‌‌‌​​​​‌​‍Omaha, NE, for Defendant-Appellant.

Thomas J. Kangior, AUSA, on the brief and argued, Omaha, NE, for Plaintiff-Appellee.

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Patricio Renteria-Saldana pleaded guilty to a charge of conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court1 sentenced him to 210 months’ imprisonment, followed by five years of supervised release. Renteria-Saldana appeals, arguing that the district court committed procedural error in calculating the advisory sentencing guideline range. We affirm.

I.

After Renteria-Saldana pleaded guilty to the conspiracy charge, the district court was presented with a presentence investigation report that included some statements of fact to which Rentеria-Saldana made no objection. The government also presented police reports concerning an investigation of Renteria-Saldana and others who were involved in the charged conspiracy. These sources are the basis for the factual information that underlies the disputed guidelines calculations.

Renteria-Saldana was arrested after a traffic stop in March 2012. During a search of Renteria-Saldana and his car, officers found methamphetamine, cash, and drug records. Renteria-Saldana admitted that he distributed methamphetamine for others who used a house at 1515 Dorcas Street in Omaha as a “stash house” where he picked up the drugs. Renteria-Saldana had a key to the stash house and granted offiсers permission to search the house.

During the search of the house on Dorcas Street, officers found 121 grams of methamphetamine in a clear plastic container under the floor beneath the sink cabinet in the kitchen. Under the sink, they also located a drug scale and a loaded nine-millimeter firearm. The search team discovered additional ‍​​​​​​​​​​​​‌​​​‌​‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌​​​‌‌‌​​​​‌​‍methamphеtamine in a trash-bag box in the kitchen area and on a closet shelf in a bedroom. According to police reports, officers found an inflatable bed, but no clothes or furniture in the hоuse. Officers also searched Renteria-Saldana‘s residence, where they seized drug records and $34,000 in cash.

Officers interviewed Renteria-Saldana after his arrest in March 2012 and providеd the following written report, which was admitted into evidence at sentencing. Renteria-Saldana first claimed that a person named “Antonio” told him to pay the utility bills for the stash house, but later admitted that was not true. Instead, Renteria-Saldana acknowledged that he worked directly with two cousins who left for Mexico in early March and left Renteria-Saldana in charge of the stash house. Renteria-Saldana said that every two or three days someone named Francisco called and told him that drugs had been dropped off at the stash house, typically under thе sink in a plastic storage bin. Francisco also called to alert Renteria-Saldana when someone was coming to the stash house to pick up money from Renteria-Saldana‘s drug sales.

The district court addressed two disputed issues under the sentencing guidelines. First, the district court found that Renteria-Saldana possessed a firearm and thus added two offense levels pursuant tо USSG § 2D1.1(b)(1). The court found that Renteria-Saldana was in constructive possession of the loaded firearm that officers found under the kitchen sink in the stash house:

He was using the stash house. He had the keys to it. As noted, he was paying the utilities for it. And whether or not he was under the direction of somebody up the chain of command in Mexico, the weapon was there, right with the scales and the drugs. And it was nоt clearly improbable that it was there to be used in connection with the drug dealing. So again, I find he was in possession of the weapon.

Second, the court found that Renteria-Saldanа maintained the Dorcas Street house for the purpose of distributing a controlled substance, and thus added two offense levels pursuant to USSG § 2D1.1(b)(12):

I find that he was operating his drug-dealing business from that stаsh house and he was maintaining that stash house. And he had the keys to it and he paid the utilities for it. So whether or not he was getting directions from somebody else in Mexico, I find that that enhancement is рroper.

The district court then sentenced Renteria-Saldana at the low end of the advisory-guidelines range to a term of 210 months ‍​​​​​​​​​​​​‌​​​‌​‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌​​​‌‌‌​​​​‌​‍in prison, to be followed by five years of supervised relеase. Renteria-Saldana appeals the sentence. We review the district court‘s findings of fact for clear error and its application of the guidelines de novo.

.

II.

The sentencing guidelines provide for a two-level increase in offense level in a drug-trafficking case “[i]f a dangerous weapon (including a firearm) was possessed.” USSG § 2D1.1(b)(1). The enhancement “should bе applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id., comment. (n.11(A)). Thus, the government must show that “(1) the gun was possessed and (2) it was not clearly improbable that the weapon was connected to the drug offense.”

. Actual or constructive possession is sufficient to satisfy the guideline.

The district court fоund that Renteria-Saldana constructively possessed the firearm that was found under the sink at the Dorcas Street house. Constructive possession implies knowing possession, see

, so assuming that knowledge was required, cf.
, the finding of knowledge was not clearly erroneous. As one who possessed a key to the house and paid the utility bills, Renteria-Saldana had dominion over the area where the gun was found. He acknowledged that he regularly ‍​​​​​​​​​​​​‌​​​‌​‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌​​​‌‌‌​​​​‌​‍accessed the area beneath the sink to retrieve drugs. Firearms are tools of the drug trade, and it was reasonable to infer that Renteria-Saldana knew about the loaded gun that was found in the same area as the drugs. See
.

The evidence also supports the district court‘s finding that it was not clearly improbable that the weapon was сonnected with Renteria-Saldana‘s drug trafficking offense. The gun was not an unloaded hunting rifle in a closet, see USSG § 2D1.1, comment. (n.11(A)); it was a loaded handgun located in a stash house with the drugs that were dеlivered to Renteria-Saldana for resale. Whether or not Renteria-Saldana personally used the firearm, it was enough for the government to show that he knowingly possessed it and that it wаs connected to the drug trafficking offense.

. The district court properly applied USSG § 2D1.1(b)(1).

The guidelines also provide that a defendant‘s offense level must be increased by two levels if he knowingly “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” USSG § 2D1.1(b)(12). In determining whether a defendant “maintained” a premises, the court should consider whether the defendant had a possessory interest in the premises and the extent to which the defendant controlled access to, or activities at, the premises. Id., comment. (n.17).

Although Renteria-Saldana did not own or reside at the Dorcas Street stash house, he exercised control over it and operated his drug-dealing business from the premises. A police report submitted at sentencing indicated that, according to Renteria-Saldana, two of his co-conspirators had recently left for Mexico and left him in charge. Renteria-Saldana had a key to the house and paid the utility bills. He regularly picked up drugs frоm the house and brought drug-sale proceeds to the premises for retrieval by other conspirators. There was no furniture or clothing in the house to suggest that it was used for anything other than drug trafficking. The record thus supports the finding that Renteria-Saldana maintained the house for the purpose of distributing drugs. The court properly applied the two-level specific offense characteristic.

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The judgment of the district court is affirmed.

Notes

1
The Honorable Laurie Smith Camp, Chief Judge, United ‍​​​​​​​​​​​​‌​​​‌​‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌​​​‌‌‌​​​​‌​‍States District Court for the District of Nebraska.
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