United States Court of Appeals

For the Eighth Circuit

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No. 18-2748

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Julie Diane Andrade

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Western District of Arkansas - Ft. Smith

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 Submitted: June 14, 2019

Filed: September 9, 2019

[Unpublished]

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Before GRUENDER, STRAS, and KOBES, Circuit Judges.

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PER CURIAM.

Julie Diane Andrade pleaded guilty to conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Andrade argues
that the district court1

committed procedural error atsentencing by adding a two-level

enhancement to her base offense level for possessing a firearm in connection with the

conspiracy. We affirm.

I.

Andrade was involved in a drug trafficking conspiracy that stretched from

California to Arkansas. A confidential source informed the Drug Enforcement

Administration (DEA) that as early as 2014, Andrade was transporting 10 to 15

pounds of methamphetamine from a supplier in California to coconspirator David

Hurl Lemmon twice a month. Agents obtained additional evidence regarding

Andrade’sinvolvement in the conspiracy following two traffic stops. Evidence from

the second stop forms the basis for this appeal.

In May 2015, a New Mexico sheriff’s deputy stopped Andrade and her nephew

for careless driving. Andrade told the deputy that she was traveling to care for an

ailing friend in Arkansas, but her nephew stated that they were looking for a place for

Andrade to live. The conflicting stories raised the deputy’s suspicions that the two

were up to something illegal and he called for a K-9 unit. The canine alerted to the

presence of drugs and officersseized the vehicle. The officersrecovered a .22 caliber

Beretta handgun, .22 caliber ammunition, an ammunition magazine, and a gun case

from the trunk. In the car, they found methamphetamine inside a purse and

Andrade’s cell phone. Her nephew had a methamphetamine pipe in his pocket. 

Officers also learned that though Andrade owned the vehicle, it was registered to

Lemmon’s wife and his former business partner and that Lemmon paid for the

vehicle’s insurance. Andrade’s cell phone contained numerous text messages

coordinating the shipment of and payment for large quantities of methamphetamine.

1 The Honorable P.K. Holmes, III, United States DistrictJudge for the Western

District of Arkansas.

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After Andrade pleaded guilty to conspiracy, the presentence investigation

report (PSR) recommended that Andrade receive a two-level enhancement for

possessing a firearm, U.S.S.G. § 2D1.1(b)(1), resulting in an adjusted offense level

of 38. Andrade received a three-level reduction for her acceptance of responsibility,

resulting in a total offense level of 35. Based on a category II criminal history, the

Guidelines recommended a sentence between 188 and 235 months in prison.

OverAndrade’s objection, the district court applied the two-level enhancement. 

The court reasoned that Andrade had constructive possession of the gun because the

Albuquerque Police Department’s propertyevidence report indicated that the gun was

found loose in the trunk, not in a duffle bag as she had claimed. The court then

connected the gun and the drugs, explaining that, because “firearms are tools of the

trade . . . you can almost assume that firearms are going to be involved” with drugs. 

Sent. Tr. at 7. Andrade was sentenced to 120 months in prison—a 68-month

downward variance from the low end of the Guidelines’ range. She timely appealed.

II.

On appeal, Andrade challenges the firearm enhancement again, arguing that

she was unaware of the gun’s presence and that it was not connected to the

conspiracy. We review a district court’s factual finding that Andrade possessed a

firearm within the meaning of Section 2D1.1(b)(1) for clear error. United States v.

Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003). For the enhancement to apply,

the Government must prove by a preponderance of the evidence that: (i) a weapon

was possessed; and (ii) it was not clearly improbable that the weapon had a nexus

with the conspiracy charge. United States v. Anderson, 618 F.3d 873, 880 (8th Cir.

2010).

To prove possession, the Government must show that the defendant actually

or constructively possessed a firearm. Id. at 879. Constructive possession requires

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that an individual “exercise[] ownership, dominion, or control either over the firearm

or the premises on which it is found.” Id. at 880 (citation omitted). A finding of

constructive possession implies that the defendant knowingly possessed the firearm. 

United States v. Renteria, 755 F.3d 856, 859 (8th Cir. 2014). To prove a connection

between the gun and the crime the government “must simply show that it is not

clearly improbable that the weapon was connected to the drug offense.” United

States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). We have previously stated

that there is a nexus between a gun and the drug offense when the gun was found

“where part of the conspiracy took place.” United States v. Atkins, 250 F.3d 1203,

1214 (8th Cir. 2001); accord Perez-Guerrero, 334 F.3d at 784; Braggs, 317 F.3d at

904. “We have also recognized that a well-known tendency of drug criminals to use

firearms in connection with their drug activitiessupports an inference that a gun near

the vicinity of drug activity issomehow connected to it.” Peroceski, 520 F.3d at 889.

The district court did not clearly err when it concluded that Andrade had

constructive possession of the gun. After reviewing the property evidence report, it

ruled that the gun was recovered from the trunk because the report did not “say in a

duffle bag in the trunk, [it] says in the trunk.”2 Sent. Tr. at 9. Once the court

determined that the gun was loose in the trunk, it could conclude that she possessed

it because she owned and operated the vehicle and therefore “had dominion over the

area where the gun was found.” Id. Moreover, it is well established that the weapon

enhancement applies when the defendant was in the same vehicle as the gun. See

Perez-Guerrero, 334 F.3d at 783; Braggs, 317 F.3d at 905; Atkins, 250 F.3d at 1214.

2

Implicit in Andrade’s argument is that the district court’s conclusion that the

gun was in the trunk and not a duffle bag within the trunk was not supported by

evidence. When a defendant objects to a PSR’s factual findings, a sentencing court

must make a finding with respect to those disputed facts and it must do so based on

evidence and not the PSR. United States v. Hudson, 129 F.3d 994, 995 (8th Cir.

1997) (per curiam). Here, the court relied on the property evidence report, not the

PSR.

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There is also a clear nexus between the gun and the drug trafficking conspiracy. 

The gun was in the vicinity of drug trafficking because it was found in a vehicle: (i)

driven by Andrade who pleaded guilty to knowingly trafficking methamphetamine;

(ii) registered to Lemmon’s wife and hisformer business partner; and (iii) insured by

Lemmon. In addition, the DEA learned that Andrade was transporting 10 to 15

pounds of methamphetamine to Lemmon and text messages showed that she was

coordinating the shipment of and payment for large quantities of methamphetamine. 

Because the gun was found in the trunk and the vehicle was used in the conspiracy,

it is not clearly improbable that the gun was connected to the conspiracy.

III.

The sentence is affirmed.

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