PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO ALBERTO MONDRAGON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,

at Statesville. Richard L. Voorhees, District Judge. (5:14-cr-00058-RLV-DSC-1)

Argued: March 24, 2017 Decided: June 21, 2017 

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Motz 

and Judge Diaz joined.

ARGUED: Richard Lamb Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR., 

Monroe, North Carolina, for Appellant. Elizabeth Margaret Greenough, OFFICE OF 

THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON 

BRIEF: Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
2

NIEMEYER, Circuit Judge:

After Mario Mondragon was convicted by a jury of conspiracy to distribute 

methamphetamine and of possession with the intent to distribute methamphetamine, the 

district court sentenced him to 360 months’ imprisonment. In determining Mondragon’s 

sentence, the court applied a two-level enhancement for possession of a weapon, as 

provided in U.S.S.G. § 2D1.1(b)(1) — an enhancement designed to “reflect[] the 

increased danger of violence when drug traffickers possess weapons,” id. § 2D1.1(b)(1) 

cmt. n.11(A). In doing so, the court relied on statements from two coconspirators, one 

who first met Mondragon during and as part of the conspiracy and who reported that he 

“saw Mondragon take apart or ‘break down’ a revolver pistol while at [the 

coconspirator’s] residence,” and the other who reported that he had seen “Mondragon 

with at least two handguns” in the past.

Challenging the district court’s application of the enhancement, Mondragon argues 

that the record does not show that his firearm possession bore any relation to his drugtrafficking activities and therefore that the enhancement does not apply. We conclude, 

however, that the government provided the district court with sufficient evidence to 

support a finding that Mondragon possessed a firearm in connection with his drugdistribution activities, and accordingly we affirm.

I

Following Mondragon’s arrest in June 2014, a federal grand jury returned an 

indictment charging him in one count with participation in a conspiracy from 2012 until 
3

June 2014 to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, and 

in a second count with possession with the intent to distribute methamphetamine on July 

13, 2013, as well as aiding and abetting the same, in violation of 21 U.S.C. § 841 and 18 

U.S.C. § 2. A jury convicted Mondragon on both counts.

The evidence that the government presented at trial included statements that 

Mondragon had previously made during interviews with law enforcement officers 

admitting his involvement in a multi-kilogram methamphetamine trafficking conspiracy. 

During these interviews, he stated further that “his closest associate in [the] drug 

trafficking organization was Garry Carroll,” whom he had first met in August 2012 when 

he provided Carroll with one-half a kilogram of methamphetamine. Carroll testified 

similarly, stating that when another drug dealer first introduced him to Mondragon in 

2012 or 2013, he began to buy methamphetamine from Mondragon for distribution. 

Another coconspirator, Donald Young, also testified to purchasing methamphetamine 

from Mondragon for distribution, also beginning in 2012, although Young stated that he 

had known Mondragon for five or six years.

In preparation for sentencing, the probation office prepared a presentence report 

that concluded that Mondragon was accountable for at least 26 kilograms of 

methamphetamine, resulting in a base offense level of 38. The report also recommended 

that Mondragon receive a three-level enhancement under U.S.S.G. § 3B1.1(b) for being a 

manager or supervisor in the drug-trafficking conspiracy and that he receive a two-level 

enhancement under § 2D1.1(b)(1) because he “possessed a firearm during the course of 

the conspiracy.” The resulting offense level of 43, when combined with Mondragon’s 
4

Criminal History Category I, resulted in a Guidelines recommended sentence of life 

imprisonment.

In connection with the weapon enhancement, the presentence report noted that 

during a debriefing with law enforcement officers, Carroll reported that he had seen 

“Mondragon take apart or ‘break down’ a revolver pistol while at Carroll’s residence.” 

The report also noted that Carroll had indicated that Mondragon had told him that he 

“had killed two individuals from his town and could not return,” a statement corroborated 

by Mondragon himself, who acknowledged that “he [had] attempted to intimidate 

customers in order to collect money faster, by telling stories of [having] kill[ed] people in 

Mexico.” The report further noted that, while the conspiracy was ongoing, Mondragon 

made threatening statements in telephone calls to Carroll regarding other coconspirators, 

including Young. Finally, the report noted that Young had also told officers that he had 

previously seen Mondragon “with at least two handguns.”

Mondragon objected to the two-level weapon enhancement, arguing that “the 

firearm in question had no relationship to any drugs.” And his counsel argued at 

sentencing that, while the presentence report indicated that Carroll had stated that he had 

seen Mondragon “taking a pistol apart and cleaning it” and that Young had stated that he 

had seen Mondragon with firearms a couple of times in the past, there was “no 

indication” in either of the coconspirators’ statements that the weapons “had anything to 

do with drugs [or] that there were any drugs around” at the time. As counsel 

summarized:
5

So we would argue that, you know, while, yes, there is some minimal 

evidence that at some point in time in his life he may have, you know, 

touched a firearm or cleaned one, there is no credible evidence or no 

evidence at all that it had anything at all to do with any drugs and that this 

enhancement should not apply.

The district court overruled Mondragon’s objection, “finding that the information 

from both of the co-conspirators represents a preponderance of evidence on that 

question.” After the court adopted the presentence report and concluded that the 

probation office had accurately calculated Mondragon’s advisory sentence as life 

imprisonment, the court, after applying the 18 U.S.C. § 3553 factors, concluded that a life 

sentence was not warranted and accordingly imposed a downward-variance sentence of 

360 months’ imprisonment.

From the district court’s judgment dated March 1, 2016, Mondragon filed this 

appeal, challenging only the district court’s application of the two-level enhancement for 

possession of a weapon.

II

Mondragon argues that the district court clearly erred in applying the two-level 

weapon enhancement under U.S.S.G. § 2D1.1(b)(1) because the government failed to 

present evidence showing that his “possession of [a] firearm had [any] relation to drug 

trafficking activity.” In making this argument, he relies on United States v. McAllister, 

272 F.3d 228 (4th Cir. 2001), which reversed the application of the weapon enhancement 

under § 2D1.1(b)(1) because “[w]ithout a description by [the witness] of the 

circumstances under which he saw [the defendant] possess handguns, the district court 
6

could only speculate regarding whether [the witness] ever observed [the defendant] in 

possession of a handgun during a drug transaction,” id. at 234. He maintains that the 

same is true here, as the government failed to establish the necessary relationship 

between his possession of a firearm and his offense of conviction.

The Sentencing Guidelines provide that when sentencing a defendant convicted of 

drug offenses, the defendant’s base offense level should be increased by two levels “[i]f a 

dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The 

commentary to this provision explains that the enhancement “reflects the increased

danger of violence when drug traffickers possess weapons” and “should be applied if the 

weapon was present, unless it is clearly improbable that the weapon was connected with 

the offense.” Id. § 2D1.1(b)(1) cmt. n.11(A) (emphasis added). The commentary goes 

on to provide, as an example, that the enhancement “would not be applied if the 

defendant, arrested at [his] residence, had an unloaded hunting rifle in the closet.” Id. 

Thus, while the Guidelines’ text focuses on the weapon’s possession, the commentary 

explains that the enhancement applies if the weapon was “present,” unless not 

“connected with the offense,” making clear, by negative pregnant, that the weapon must 

be connected with the offense. Accordingly, we have held that “[t]he enhancement is 

proper when ‘the weapon was possessed in connection with drug activity that was part of 

the same course of conduct or common scheme as the offense of conviction.’” United 

States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011) (quoting United States v. Manigan, 592 

F.3d 621, 628–29 (4th Cir. 2010)).
7

The government bears the initial burden of proving, by a preponderance of the 

evidence, that the weapon was possessed in connection with the relevant illegal drug 

activity. See Manigan, 592 F.3d at 628, 630. To do so, however, it need not prove 

“precisely concurrent acts,” such as a “gun in hand while in the act of storing drugs [or] 

drugs in hand while in the act of retrieving a gun.” United States v. Johnson, 943 F.2d 

383, 386 (4th Cir. 1991) (per curiam). Rather, the government need prove only that the 

weapon was “present,” which it may do by establishing “‘a temporal and spatial relation’

linking ‘the weapon, the drug trafficking activity, and the defendant.’” United States v. 

Bolton, _____ F.3d _____, No. 16-4077, 2017 WL 2468720, at *4 (4th Cir. June 7, 2017) 

(quoting United States v. Clark, 415 F.3d 1234, 1241 (10th Cir. 2005)); see also, e.g., 

McAllister, 272 F.3d at 234 (“In order to prove that a weapon was present, the 

Government need show only that the weapon was possessed during the relevant illegal 

drug activity” (emphasis added)). If the government carries its burden, the sentencing 

court presumes that the weapon was possessed in connection with the relevant drug 

activity and applies the enhancement, unless the defendant rebuts the presumption by 

showing that such a connection was “clearly improbable.” U.S.S.G. § 2D1.1(b)(1) cmt. 

n.11(A); see also Slade, 631 F.3d at 189; Manigan, 592 F.3d at 630 n.8. In attempting to 

make this showing, the defendant may rely on “circumstantial evidence, such as the type 

of weapon involved and its location or accessibility.” Bolton, _____ F.3d at _____, 2017 

WL 2468720, at *4.

Applying these principles, we conclude that the government met its burden of 

presenting sufficient evidence from which the district court could find that Mondragon’s 
8

possession of a firearm was related to his drug-trafficking activity in that the firearm was 

present — that is, it was temporally and spatially related to the activity. First, as to the 

temporal aspect, the record shows that the drug-trafficking conspiracy of which 

Mondragon was convicted began in 2012 and was ongoing until his arrest in June 2014.

Moreover, Carroll, who knew Mondragon only during the time period of the conspiracy, 

described seeing Mondragon “take apart or ‘break down’ a revolver pistol while at 

Carroll’s residence.” Because this incident necessarily took place during the drugtrafficking conspiracy, this evidence satisfied the temporal requirement. Carroll’s 

statement was also sufficient to establish a spatial or qualitative link between 

Mondragon’s firearm possession and his drug-trafficking activity. While there was no 

direct evidence that Mondragon was at Carroll’s house to further their drug-trafficking 

conspiracy, the circumstantial evidence supports such a finding. Mondragon himself 

acknowledged that Carroll was “his closest associate in [the] drug trafficking 

organization,” and the record indicates that their relationship began and continued on the 

basis of their drug-trafficking activities. It was thus reasonable for the district court to 

infer that Mondragon’s visit to Carroll’s house was related to those ongoing activities, an 

inference that is only reinforced by the evidence that Mondragon intended, as part of the 

conspiracy, “to intimidate customers in order to collect money faster.” Indeed, 

Mondragon’s act of breaking down his revolver while at Carroll’s house — along with 

his statement to Carroll that he “had killed two individuals from his town [in Mexico] and 

could not return” and his practice of making threatening statements to Carroll regarding 

other coconspirators — can be viewed as a pattern of intimidation.
9

We thus conclude that the government presented sufficient evidence from which 

the district court could find, by a preponderance of the evidence, that Mondragon’s 

possession and display of a revolver pistol while at the house of his closest drugtrafficking associate bore a sufficient relationship to his ongoing drug-trafficking 

conspiracy to link the firearm temporally and spatially to the conspiracy. Because 

Mondragon did not even attempt to rebut the government’s showing by establishing that 

it was “clearly improbable” that his possession of the firearm at Carroll’s residence was 

connected with the conspiracy offense, the district court did not clearly err in applying 

the enhancement. 

Mondragon’s reliance on McAllister provides him with little to no support. In 

McAllister, the defendant was sentenced for possession with intent to distribute cocaine 

on a particular date, and the district court applied the weapon enhancement based on the 

testimony of one of the defendant’s drug suppliers, who said simply that he saw the 

defendant with handguns “on many occasions.” 272 F.3d at 233. In reversing the district 

court’s application of the weapon enhancement, we said that the district court clearly 

erred because the witness never stated that he “saw McAllister with a handgun during a 

narcotics transaction,” and “[w]ithout a description by [the witness] of the circumstances 

under which he saw McAllister possess handguns, the district court could only speculate 

regarding whether [the witness] ever observed McAllister in possession of a handgun 

during a drug transaction.” Id. at 234 (emphasis added). But unlike McAllister, who 

was convicted for an offense committed on a single date, Mondragon was convicted of 

conspiracy that continued over the period of some two and one-half years. And, as noted 
10

already, Carroll’s testimony about seeing Mondragon with a firearm could have only 

referred to an incident that occurred during the course of the conspiracy. To be sure, 

coconspirator Young also said that he saw Mondragon with handguns, but his testimony 

was unlimited in time, referring only to the past, which included a time period before the 

conspiracy, since Young and Mondragon had known each other for five to six years. 

Accordingly, Young’s testimony alone would not have been sufficient to show 

possession during the conspiracy, but Carroll’s testimony clearly sufficed. 

III

At oral argument, Mondragon argued for the first time that the government failed 

to show adequately that he possessed a weapon at all because it relied solely on the 

presentence report’s summary of his coconspirators’ statements to law enforcement 

officers, instead of testimony presented in court.

While it is doubtful that Mondragon appropriately preserved this argument, see 

IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) (“Failure 

to present or argue assignments of error in opening appellate briefs constitutes a waiver 

of those issues”), we nonetheless conclude that it lacks merit.

It is well established that a court may, for purposes of sentencing, consider “any 

relevant information before it, including uncorroborated hearsay, provided that the 

information has sufficient indicia of reliability to support its accuracy.” United States v. 

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). Moreover, the defendant bears “an 

affirmative duty” to show “that the information in the presentence report is unreliable, 
11

and articulate the reasons why the facts contained therein are untrue or inaccurate.” 

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Because Mondragon did not 

attempt to make this showing at sentencing — indeed, he conceded that his 

coconspirators’ statements, as described in the presentence report, provided “some 

minimal evidence” that he had previously possessed firearms — the court was entitled to 

credit the unchallenged witness statements summarized in the presentence report when

determining whether the enhancement provided in U.S.S.G. § 2D1.1(b)(1) was 

applicable. See Fed. R. Crim. P. 32(i)(3) (“At sentencing, the court . . . may accept any 

undisputed portion of the presentence report as a finding of fact”).

* * *

Accordingly, we conclude that the district court did not clearly err in finding that 

Mondragon possessed a firearm within the meaning of § 2D1.1(b)(1) and therefore affirm 

the district court’s judgment.

AFFIRMED