APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING. (D.C. No. 1:10-CR-00326-ABJ-1).
Deborah Roden of Woodhouse, Roden, Nethercott, L.L.C., Cheyenne, Wyoming, for Defendant - Appellant.
L. Robert Murray, Assistant United States Attorney, (and Christopher A. Crofts, United States Attorney, on the brief), Cheyenne, Wyoming, for Plaintiff - Appellee.
Before KELLY, MURPHY, and HARTZ, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Miguel Castro-Perez appeals from a judgment of the district court sentencing him to sixty-three months' imprisonment and three years' supervised release, arguing the court improperly applied a two-level sentencing enhancement for possession of a firearm in connection with a drug trafficking offense. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing.
The facts relevant to this appeal are not disputed. Mr. Castro-Perez was part of a cocaine trafficking operation in Jackson, Wyoming tat was under investigation by state and federal law enforcement beginning in March 2009. 2 R. 23. On March 31, 2010, Mr. Castro-Perez sold two ounces of cocaine to an undercover agent. 2 R. 28; 3 R. 28-29. During the sale, the agent asked if Mr. Castro-Perez could sell him a gun. 2 R. 28; 3 R. 67. Later that day, after the drug transaction was completed, Mr. Castro-Perez obtained and sold a pistol to the agent. 2 R. 28; 3 R. 67.
Mr. Castro-Perez later pled guilty to one count of distribution of cocaine in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C) and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § § 922(g)(5)(A) and 924(a)(2). 2 R. 9. In the presentence report, the probation office recommended a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) because Mr. Castro-Perez sold a gun to the undercover agent on the same day he sold cocaine to the agent. 2 R. 31. Mr. Castro-Perez objected, asserting that the agent initiated the gun sale and that it and the drug sale were separate and distinct. Id. at 37.
At sentencing, Mr. Castro-Perez again objected to the firearm enhancement, arguing that there was no evidence he possessed the gun in relation to the drug conspiracy. 3 R. 56-57. The government responded that the sale of the firearm was negotiated during the drug transaction, and that the gun was sold during the course of an ongoing drug conspiracy. 3 R. 60.
The district court ultimately found the firearm enhancement appropriate. 3 R. 69. The court noted that while there was no evidence the weapon was carried during the drug transaction, the sale of the gun was temporally close to the drug transaction, the gun was sold to a known drug user, and the gun was of a type more likely to be used for personal protection than for hunting. 3 R. 68-69. " Reading the rule broadly," the court applied the enhancement. 3 R. 69. The court ultimately sentenced Mr. Castro-Perez to sixty-three months' imprisonment and three years' supervised release. 3 R. 84. He timely appealed. 1 R. 103.
There is only one issue before us: whether the undisputed facts of this case warrant a sentencing enhancement under § 2D1.1(b)(1). We review that issue de novo. United States v. ...