UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4929

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAFAEL PINEDA JARAMILLO, a/k/a Aurelio Garcia Penaloza,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:14-cr-00051-NCT-1)

Submitted: July 23, 2015 Decided: September 10, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant. 

Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rafael Pineda Jaramillo appeals from his conviction and 

120-month sentence imposed pursuant to his guilty plea to 

manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(A) (2012). On appeal, Jaramillo’s counsel submitted a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

certifying that there are no meritorious grounds for appeal, but 

questioning whether the district court erred in enhancing 

Jaramillo’s sentence for possession of firearms in connection 

with the offense. Although advised of his right to do so, 

Jaramillo has not filed a pro se supplemental brief. The 

Government declined to file a brief.* After a thorough review of 

the record, we affirm.

Jaramillo argues that the district court erred in applying 

the enhancement under U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2013), for possession of firearms, asserting 

there was insufficient evidence that he possessed the firearms 

found in the stash house or that the firearms were connected to 

the drug activity for which he was convicted. In assessing a 

challenge to the district court’s application of the Guidelines, 

we review the district court’s factual findings for clear error 

 * In addition, the Government has not filed a motion to 

dismiss based upon Jaramillo’s appellate waiver in his plea 

agreement. We decline to raise the waiver sua sponte.
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and its legal conclusions de novo. United States v. Alvarado 

Perez, 609 F.3d 609, 612 (4th Cir. 2010).

Section 2D1.1(b)(1) of the Guidelines directs a district 

court to increase a defendant’s offense level by two levels 

“[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). “[P]roof 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. 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.

Jaramillo has failed to show that the connection between 

the firearms and the manufacture of marijuana was “clearly 

improbable,” and, on Anders review, “[t]here is nothing in the 

record to suggest that the weapons were unconnected to the 
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offense.” United States v. Gomez-Jiminez, 750 F.3d 370, 382, 

cert. denied, 135 S. Ct. 384 (2014). To the contrary, the record 

affirmatively supports the connection: Jaramillo participated in 

the cultivation of marijuana at the stash house where he was 

arrested, and three loaded and readily-accessible weapons were 

found inside the stash house following his arrest. As such, the 

court’s factual finding that the weapons were connected to the 

drug offense was not clearly erroneous.

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. Accordingly, 

we affirm Jaramillo’s conviction and sentence. This court 

requires that counsel inform Jaramillo, in writing, of the right 

to petition the Supreme Court of the United States for further 

review. If Jaramillo requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, then 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Jaramillo. We dispense with oral argument because 

the facts and legal contentions are adequately expressed in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED