UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-5009

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

PEDRO GOMEZ-JIMENEZ, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever, III, 

Chief District Judge. (5:11-cr-00375-D-3) 

Submitted: September 26, 2013 Decided: November 12, 2013

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, 

Senior Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Pedro Gomez-Jimenez (“Pedro”) pled guilty to 

conspiracy to distribute and possess with intent to distribute 

280 grams or more of cocaine base and five kilograms or more of 

cocaine, in violation of 21 U.S.C. § 846 (2006), and aiding and 

abetting the possession with intent to distribute 280 grams or 

more of cocaine base and five kilograms or more of cocaine, in 

violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1) 

(West 2006 & Supp. 2013). The district court calculated Pedro’s 

Guidelines range at 168 to 210 months’ imprisonment, enhancing 

his base offense level for possession of a firearm and use of a 

minor, U.S. Sentencing Guidelines Manual (“USSG”) 

§§ 2D1.1(b)(1), 3B1.4 (2009 & Supp. 2010), and sentenced Pedro 

to concurrent terms of 180 months’ imprisonment. 

Pedro challenges this sentence on appeal. We affirm. 

We review Pedro’s sentence for reasonableness “under a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41, 51 (2007). This review entails 

appellate consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In determining 

procedural reasonableness, we consider whether the district 

court properly calculated the defendant’s advisory Guidelines 

range, gave the parties an opportunity to argue for an 

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) 
3

factors, selected a sentence based on clearly erroneous facts, 

and sufficiently explained the selected sentence. Id. at 49–51. 

If the sentence is free of “significant procedural error,” we 

review it for substantive reasonableness, “tak[ing] into account 

the totality of the circumstances.” Id. at 51. 

Pedro argues that the district court erred in 

enhancing his offense level under USSG § 2D1.1(b)(1). Under 

USSG § 2D1.1(b)(1), a two-level increase in a defendant’s 

offense level is warranted “[i]f a dangerous weapon (including a 

firearm) was possessed.” The enhancement is proper when the 

weapon at issue “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. Manigan, 592 F.3d 

621, 628-29 (4th Cir. 2010) (internal quotation marks omitted), 

even in the absence of “proof of precisely concurrent acts, for 

example, gun in hand while in the act of storing drugs, drugs in 

hand while in the act of retrieving a gun.” United States v. 

Harris, 128 F.3d 850, 852 (4th Cir. 1997) (internal quotation 

marks omitted). “Rather, proof of constructive possession of 

the [firearm] is sufficient, and the Government is entitled to 

rely on circumstantial evidence to carry its burden.” Manigan, 

592 F.3d at 629. Further, we attribute weapons possessed by 

co-conspirators to a defendant when “under the circumstances of 

the case, it was fair to say that it was reasonably foreseeable 
4

to defendant that his co-participant was in possession of a 

firearm.” United States v. Kimberlin, 18 F.3d 1156, 1159-60 

(4th Cir. 1994) (internal quotation marks and alteration 

omitted). The defendant bears the burden to show that a 

connection between his possession of a firearm and his narcotics 

offense is “clearly improbable.” Harris, 128 F.3d at 852-53. 

We conclude after review of the parties’ briefs and 

the record that Pedro has not met this burden. The district 

court’s application of the two-level enhancement under USSG 

§ 2D1.1(b)(1) is supported by statements adduced at the guilty 

plea hearing and in the presentence report supporting a finding 

that Pedro could foresee his co-defendant’s constructive 

possession of three firearms in a residence where the 

participants in the conspiracy stored cocaine and marijuana, 

large amounts of United States currency, and paraphernalia used 

for transporting, storing, and measuring drugs and converting 

cocaine into cocaine base. At sentencing, Pedro did not point 

to any evidence suggesting that the connection between the 

firearms and his narcotics offenses was “clearly improbable,” 

and this failing continues on appeal. 

Next, Pedro challenges the district court’s 

application of the two-level enhancement under USSG § 3B1.4 for 

use of a minor. This section of the Guidelines directs a 

district court to increase a defendant’s offense level by two 
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levels if the defendant “used or attempted to use a person less 

than eighteen years of age to commit the offense.” 

USSG § 3B1.4. “‘Used or attempted to use’ includes directing, 

commanding, encouraging, intimidating, counseling, training, 

procuring, recruiting, or soliciting.” Id., cmt. n.1. 

The district court’s application of the two-level enhancement 

under USSG § 3B1.4 is supported by information in both the 

presentence report and the Government’s evidentiary proffer 

establishing that Pedro directed the sixteen-year-old son of a

co-defendant to assist him in producing cocaine base. 

See United States v. Murphy, 254 F.3d 511, 513-14 (4th Cir. 

2001) (affirming application of enhancement where defendant 

directed the minor to “hold [a] gun on” carjacking victim).1

 

Next, Pedro argues that the district court erred in 

denying his motion for a downward departure or variance from the 

Guidelines range based on law enforcement officials’ allegedly 

improper use of force during his arrest. However, a district 

court’s refusal to depart from the applicable Guidelines range

does not provide a basis for appeal under 18 U.S.C. § 3742 

(2006), “unless the court failed to understand its authority to 

 1 Pedro also argues that it was error for the district court 

to apply the § 3B1.4 enhancement based on the late date of the 

proffer, but he fails to explain why this is so or why the late 

date warrants vacatur of his sentence. 
6

do so.” United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 

2008). Pedro does not suggest that the district court 

misunderstood its authority to depart or vary downward from the 

Guidelines range. Accordingly, this claim is not reviewable. 

Finally, Pedro argues that his 180-month sentence is 

substantively unreasonable. A within-Guidelines sentence is

presumed on appeal to be substantively reasonable, United 

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010), 

and the presumption is rebutted only by a showing “that the 

sentence is unreasonable when measured against the § 3553(a) 

factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 

(4th Cir. 2006) (internal quotation marks omitted). Pedro 

suggests that his sentence is substantively unreasonable because 

it is greater than necessary to achieve the goals of sentencing.2

 

We reject this argument as it essentially asks this court to 

substitute its judgment for that of the district court and defer 

to that court’s decision that a 180-month sentence achieved the 

purposes of sentencing in Pedro’s case. United States v. 

Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (“[D]istrict courts 

 2 In support of his contention that his sentence is 

substantively unreasonable, Pedro also asserts it was error for 

the district court to enhance his sentence “concerning the use 

of a minor based on hearsay evidence” that the parties did not 

have an opportunity to “rebut or explain.” Pedro, however, 

fails to explain how such an error would render his sentence 

substantively unreasonable. 
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have extremely broad discretion when determining the weight to 

be given each of the § 3553(a) factors.”). Pedro fails to rebut 

the presumption that his within-Guidelines sentence is 

substantively reasonable. Accordingly, we conclude that the 

district court did not abuse its discretion in sentencing Pedro. 

We therefore affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

AFFIRMED