FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 14, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-11508 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 1:10-cr-00158-KD-N-1

UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

JESUCRISTO LOPEZ, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Southern District of Alabama

 ________________________

(June 14, 2012)

Before DUBINA, Chief Judge, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
Appellant Jesucristo Lopez appeals his 87-month sentence of imprisonment,

imposed after he pled guilty to one count of conspiracy to distribute and possess

with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 846

and 841(a)(1) and (b)(1)(B), and one count of attempting to smuggle weapons

from the United States, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 554(a). 

On appeal, Lopez argues that his sentence appeal waiver was not knowing and

voluntary, and that the district court erred in applying a two-level guideline

sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous

weapon. We have already resolved the waiver issue by denying the government’s

motion to dismiss on that ground. Therefore, this opinion only addresses the

sentencing issue.

We review a district court’s findings of fact under § 2D1.1(b)(1) for clear

error, and its application of the Sentencing Guidelines to those facts de novo. 

United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). However, it is “not

necessary to decide guidelines issues or remand cases for new sentence

proceedings where the guidelines error, if any, did not affect the sentence.” 

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (internal quotation

marks omitted). To hold that an alleged guideline error was harmless, we consider

whether: (1) the district court would have reached the same result if it had decided

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the guideline issue the other way; and (2) the sentence imposed was reasonable

under the factors in 18 U.S.C. § 3553(a), even if the guideline issue had been

resolved in the defendant’s favor. Id.

Under § 2D1.1(b)(1), a defendant is subject to a two-level enhancement “[i]f

a dangerous weapon (including a firearm) was possessed.” U.S.S.G.

§ 2D1.1(b)(1). The commentary to this section provides as follows: “The

enhancement for weapon possession in subsection (b)(1) reflects the increased

danger of violence when drug traffickers possess weapons. The enhancement

should be applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense.” Id. § 2D1.1 comment. (n.3(A)). 

Possession can be shown by demonstrating the defendant actually possessed the

firearm or that he constructively possessed it. United States v. Villarreal, 613 F.3d

1344, 1359 (11th Cir. 2010). Constructive possession means that the defendant

had “ownership, dominion, or control over an object itself or control over the

premises in which the object is concealed.” Id. (internal quotation marks omitted).

As to the reasonableness of the sentence, the district court must impose a

sentence “sufficient, but not greater than necessary, to comply with the purposes”

listed in § 3553(a)(2), including the need to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter

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criminal conduct, and protect the public from the defendant’s future criminal

conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court

must also consider, among other factors, the nature and circumstances of the

offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, and the pertinent policy statements of the

Sentencing Commission. See generally id. § 3553(a)(1), (3)-(7). 

“The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). The “weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district

court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (internal

quotation marks omitted). We will not reverse unless “left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v. Irey,

612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks

omitted), cert. denied, 131 S. Ct. 1813 (2011).

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We conclude from the record that any error committed by the district court

in imposing a two-level guideline enhancement under § 2D1.1(b)(1) was harmless

under the circumstances. The record demonstrates that the district court would

have imposed the same 87-month total sentence of imprisonment even if the

guideline issue had been resolved in Lopez’s favor, and his sentence would have

been reasonable if his advisory guideline range had been calculated absent the

enhancement. See Keene, 470 F.3d at 1349. Accordingly, we affirm Lopez’s

sentence.

AFFIRMED.

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