United States Court of Appeals

For the Eighth Circuit

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No. 11-3788

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Robert Garcia

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: October 18, 2012

 Filed: January 16, 2013

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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

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BYE, Circuit Judge.

A jury convicted Robert Garcia of conspiracy to distribute and possession with

intent to distribute methamphetamine and Oxycodone in violation of 21 U.S.C. §§

841(a), 841(b)(1)(A), and 846, and aiding and abetting possession with intent to

distribute methamphetamine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A) and
18 U.S.C. § 2. The district court sentenced Garcia to 240 months of imprisonment. 1

Garcia appeals his sentence on the grounds the district court clearly erred in finding

he was an organizer or leader of a criminal activity that involved five or more

participants pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) §

3B1.1(a) and possessed a firearm in connection with a drug offense pursuant to

U.S.S.G. § 2D1.1(b)(1). We affirm.

I

The Bureau of Alcohol, Tobacco, and Firearms (ATF) began investigating

Garcia's drug trafficking activities in 2007. Garcia lived in Garrison, Minnesota,

where he ran an auto body shop called D.J.'s Auto. Garcia allowed Randy Lee

Motzko, who later pleaded guilty and testified for the government, to live at D.J.'s

Auto in exchange for running errands for Garcia's drug trafficking operation. Motzko

testified Garcia directed him to drive to the Minneapolis-St. Paul area on at least four

occasions to pick up a pound of methamphetamine from Epifanio Manzanares and

transport the methamphetamine back to Garrison. 

On June 24, 2010, Garcia provided Motzko a pickup truck and instructed him

to meet Manzanares in the Twin Cities to pick up methamphetamine. Authorities

learned of the meeting. Crow Wing County Deputy Patrick Pickar pulled over

Motzko's truck as Motzko returned from the transaction. After Pickar learned the

truck was uninsured, he impounded the vehicle. Officerslater searched the truck and

discovered the methamphetamine inside a box of Tide laundry detergent. The

officersreplaced the Tide box with a similar box to try to further the investigation and

identify additional co-conspirators. Their plan worked. John Hildreth retrieved the

truck from the impound lot. Officers followed him as he drove the truck to a boat

The Honorable MichaelJ. Davis, Chief Judge, United States DistrictCourt for

1

the District of Minnesota. 

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launch on Mille Lacs Lake. Garcia and Shawn Fultz arrived on a pontoon boat. 

Officers watched while the three men searched for the methamphetamine located

inside the box of detergent.

Thomas Cisar and Emily Blahnik also testified for the government. Cisar did

odd jobs at D.J.'s Auto and receivedmethamphetamine as compensation for his work. 

Blahnik was the girlfriend of Karl Pentz, who was indicted with Garcia and pleaded

guilty to conspiracy and firearm charges. Blahnik took over Pentz's drug dealing

operation after Pentz was arrested. Blahnik testified she received an ounce of

methamphetamine from Garcia for resale at least four times before Blahnik was

arrested on July 30, 2008 for selling one half-ounce of methamphetamine. 

Finally, the government presented the testimony of two confidential

informants, Anthony Kemper and Renee Kelm. Kemper made nine controlled

methamphetamine buys from Garcia between the summer of 2009 and the fall of

2010. Kelm made five controlled methamphetamine buys from Pentz between

February 2010 and May 2010. 

The jury returned a guilty verdict. Before sentencing, the district court

examined a presentence investigation report (PSR), which recommended increasing

Garcia's offense level by two for possession of a dangerous weapon in connection

with a drug crime pursuant to U.S.S.G. § 2D1.1(b)(1) and by an additional four levels

for being an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive pursuant to U.S.S.G. § 3B1.1(a). Garcia

objected to the recommended enhancements.

The district court held an evidentiary hearing regarding the disputed sentencing

issues on December 13, 2011. ATF Agent Jayme Syverson, who had been with the

investigation since it began, testified at the hearing. He stated the majority of Garcia's

drug sales took place in Garcia's home or business. Garcia's role was to coordinate

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all aspects of these transactions. Syverson recounted one particular transaction on

May 20, 2010, in which police officers followed Pentz from his residence to Garcia's

home on Mille Lacs Lake. Pentz picked up methamphetamine at Garcia's home and

thereafter drove to a McDonald's parking lot, where Pentz sold methamphetamine to

Kelm. Syverson also detailed the October 14, 2010 execution of a search warrant at

Garcia's home. Inside Garcia's bedroom, agents found a small amount of psilocybin

mushrooms and marijuana, four Ecstasy tablets, a rifle magazine loaded with eight

.22 caliber rounds, and ten loose .270 caliber rounds. Inside Garcia's laundry room,

agents found five guns: three 12-gauge shotguns and two rifles. Agents found

additional ammunition in a downstairs bedroom and an outside shed.

After considering the testimony at the sentencing hearing and the evidence at

trial, the district court overruled Garcia's objections to the PSR and imposed the two

enhancements. The court calculated Garcia's Guidelines range at 360 months to life,

but varied downward and sentenced Garcia to 240 months of imprisonment. Garcia

then filed this appeal. 

II

Garcia asks us to reverse the district court's sentence and remand for

resentencing for two reasons: (1) the district court erred in applying the four-level

leadership enhancement; and (2) the district court improperly applied the two-level

dangerous weapon enhancement. 

We review the district court's application ofthe Sentencing Guidelines de novo

and its factual findings for clear error. United States v. Anderson, 618 F.3d 873, 879

(8th Cir. 2010). Because the number of members of a conspiracy and a defendant's

possession of a gun within the meaning of U.S.S.G. § 2D1.1(b)(1) are matters of fact,

this court reviews the district court's conclusions for clear error. United States v.

Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008) (leadership enhancement); United

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States v. Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003) (dangerous weapon

enhancement). 

A. Leadership Enhancement

Section 3B1.1(a) mandates a four-level enhancement "[i]f the defendant was

an organizer or leader of a criminal activity that involved five or more participants or

was otherwise extensive." A "participant" is "a person who was criminally

responsible for the commission of the offense, but need not have been convicted."

U.S.S.G. § 3B1.1, cmt. n.1. "The government bears the burden of proving by a

preponderance of the evidence that the aggravating role enhancement is warranted." 

United States v. Gaines, 639 F.3d 423, 427 (8th Cir. 2011). 

Garcia does not dispute he was a leader or organizer. Instead, he argues the

criminal conspiracy he led did not have five or more participants. Garcia concedes

he, cooperating co-defendant Motzko, and co-defendant Pentz were participants. 

Appellant's Br. 21. He claims, however, the district court clearly erred when it found

co-defendant Manzanares participated in the conspiracy because the government did

not present evidence of Manzanares's participation in its memorandum detailing the

government's sentencing position. We disagree. Manzanares pleaded guilty to

participating in the conspiracy Garcia led. Moreover, Agent Syverson's testimony at

the sentencing hearing regarding the June 24, 2010 transaction between Motzko and

Manzanares was sufficient to establish Manzanares was a participant. Motzko's trial

testimony about the multiple drug transactions he conducted with Manzanares

provided further evidence. A sentencing court may rely on evidence introduced at

trial when making Guidelines determinations. United States v. Bledsoe, 445 F.3d

1069, 1073 (8th Cir. 2006) ("Having presided over the trial, the district court was

entitled to rely on this evidence at sentencing . . . ."). The government has adduced

more than sufficient evidence to prove Manzanares was a participant in the

conspiracy Garcia led.

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Garcia also contends the district court clearly erred with respect to the other

participants because (1) Blahnik and Cisar had only a transient, buyer-seller

relationship with Garcia; and (2) the evidence regarding the remaining participants

is vague and inconclusive. Again, we disagree. We have acknowledged "the mere

agreement of one person to buy what another agrees to sell, standing alone, does not

support a conspiracy conviction." United States v. Prieskorn, 658 F.2d 631, 634 (8th

Cir. 1981) (quotation and citation omitted). A buyer-seller relationship, however,

involves "a single transient sales agreement and small amounts of drugs consistent

with personal use." Id. (quotation and citation omitted); see also United States v.

Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011), cert. denied, 132 S. Ct. 1583 (2012). 

Here, after Pentz was arrested, Blahnik obtained an ounce of methamphetamine from

Garcia for resale at least four times. Blahnik was arrested on July 30, 2008 for selling

one half-ounce ofmethamphetamine Garcia had provided her. The evidence, in short,

established an ongoing relationship in which Garcia was Blahnik's supplier. We

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therefore have little difficulty concluding Blahnik participated in the conspiracy

Garcia led. 

Because we conclude Manzanares and Blahnik were participants and Garcia

has conceded he, Motzko, and Pentz participated, the conspiracy had five or more

participants. We need not address Garcia's arguments with respect to the other

participants. The district court did not clearly err when it imposed the enhancement. 

B. Dangerous Weapon Enhancement

Section 2D1.1(b)(1) provides, "[i]f a dangerous weapon (including a firearm)

was possessed, increase by 2 levels." For § 2D1.1(b)(1) to apply, the government

The fact Blahnik was not indicted for this conduct makes no difference. See 2

United States v. Mendoza, 341 F.3d 687, 693 (8th Cir. 2003) (concluding persons

who are not indicted still may be "participants" for purposes of U.S.S.G. § 3B1.1).

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must prove (1) the weapon was possessed; and (2) it was not clearly improbable that

the weapon was connected to the drug offense. Anderson, 618 F.3d at 880. "The

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government can prove that the weapon was connected with the offense by showing

that a temporal and spatial relation existed between the weapon, the drug trafficking

activity, and the defendant." United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996)

(quotation and citation omitted). Although the mere presence of a weapon is not

enough, United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005), the government

need not show the defendant used or even touched a weapon to find a connection. 

United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam). The

enhancement poses "a very low bar for the government to hurdle." Anderson, 618

F.3d at 882. 

Garcia does not dispute he possessed the weapons. Rather, he argues it was

"clearly improbable" the weapons ATF agents found were connected to the

methamphetamine conspiracy he led. Appellant's Br. 27. The district court found

that on at least one occasion, Garcia dealt drugs to Pentz at Garcia's residence. 

Statement of Reasons 10. Garcia contends the government did not prove by a

preponderance of the evidence this transaction took place in Garcia's house, as

opposed to some other location on his property. Therefore, Garcia argues, the district

court erred when it found a spatial nexus between the guns, the methamphetamine

conspiracy, and him. Garcia also claims there was no temporal nexus. The

indictment stated the conspiracy ended on or about September 29, 2010. The alleged

Until relatively recently, there wassome intra-circuit inconsistency regarding

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this requirement. Some courts employed the "not clearly improbable" formulation

described above, while others required the government to show it was "at least

probable that the weapon was connected to the offense." United States v. Hays, 15

F.3d 125, 127 (8th Cir. 1994). Judge Arnold resolved this inconsistency in plenary

fashion in United States v. Peroceski, 520 F.3d 886 (8th Cir. 2008). It is now settled

the government must show it is "not clearly improbable" the weapon was connected

to the drug offense for the enhancement to apply. 

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drug deal between Garcia and Pentz occurred on May 20, 2010. According to Garcia,

these events are too remote from the October 14, 2010 seizure of the guns to

constitute a temporal nexus. Because these connections are lacking, Garcia argues

the government did not prove a required element of the enhancement. 

Garcia's arguments are without merit. We have held the government

demonstratesthe required connection between the weapon and the drug activitywhen

the weapon "was found in the same location where drugs or drug paraphernalia were

located or where part of the conspiracy took place." United States v. Young, 689

F.3d 941, 946 (8th Cir. 2012) (quotation and citation omitted). The guns were found

inside Garcia's laundry room. Part of the conspiracy unquestionably took place in

Garcia's home. ATF Agent Syverson testified many of Garcia's drug sales took place

inside his home. See United States v. Martinez, 557 F.3d 597, 600 (8th Cir. 2009)

(concluding witness testimony may provide a sufficient basis for a district court to

apply the § 2D1.1(b)(1) enhancement). Garcia offers no evidence the May 20, 2010

drug sale between him and Pentz took place elsewhere. Even if the transaction did

take place elsewhere on the property, we have not required both the weapon and drug

activity to be located within the home to find the two are connected. United States

v. Betz, 82 F.3d 205, 211 (8th Cir. 1996) (holding the district court did not clearly err

in applying the enhancement where guns were found on the same premises from

which the defendant trafficked drugs and were "readily accessible" to the defendant). 

Indeed, we have found a nexus where the connection between the guns and the drugs

is more remote than in Garcia's case. See Peroceski, 520 F.3d at 889-90 (concluding

the district court did not err in applying the enhancement where the drugs were found

inside a locked safe in the defendant's girlfriend's garage and guns were found inside

a camper-trailer on the property where the defendant sometimes lived). 

Moreover, although Garcia correctly notes the guns were not seized until after

the termination of the conspiracy, we do not indulge the far-fetched conclusion

Garcia acquired five guns in the two-week period between the end of the conspiracy

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and the execution of the search warrant. Garcia ran a drug operation for many years. 

Given the long-standing duration of Garcia's conduct, the district court did not clearly

err in finding Garcia possessed the guns while the conspiracy took place. Because

the guns were found inside Garcia's home and part of the conspiracy took place in

that same location, it is not clearly improbable the weapons were connected to

Garcia's drug trafficking activity. The district court properly applied the

enhancement. 

III

The judgment of the district court is affirmed.

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