FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 30, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15556

Non-Argument Calendar

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D. C. Docket No. 07-00151-CR-T-30-EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

LUIS ENRIQUE FLORES-MOYA, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 30, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Luis Flores-Moya appeals his low-end, Guideline range, aggregate sentence
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of 87 months’ incarceration, followed by 5 years supervised release, that he

received after being convicted of (1) conspiracy to possess with intent to distribute

at least 5 kilograms of cocaine while onboard a vessel subject to the jurisdiction of

the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. §

70506(a) and (b), and (2) possession with intent to distribute at least 5 kilograms of

cocaine while onboard a vessel subject to the jurisdiction of the United States, in

violation of 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii), and

46 U.S.C. § 70503(a)(1). On appeal, Flores-Moya argues that the district court

improperly applied the Guidelines by enhancing his offense level by two levels

pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon because

he had no knowledge of or connection to the weapons.

I.

We review a district court’s interpretation of the Guidelines de novo, but

accept the district court’s factual findings unless they are clearly erroneous. United

States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005).

A district court must correctly apply the Guidelines to calculate the

Guideline range. Crawford, 407 F.3d at 1179. In applying the Guidelines, the

court may rely upon the factual statements concerning relevant conduct in the PSI

unless the defendant objects to those statements. United States v. Shelton,
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400 F.3d 1325, 1330 (11th Cir. 2005). While explicit findings of fact and

determinations are preferred, a court’s failure to make such findings and

determinations does not require remand, if the record clearly supports the court’s

implicit determination. United States v. Villarino, 930 F.2d 1527, 1528-29

(11th Cir. 1991).

Under the Guidelines, if a defendant possesses a dangerous weapon in

relation to a drug offense, his offense level is increased by 2 levels. U.S.S.G.

§ 2D1.1(b)(1). The commentary instructs that the weapon enhancement should be

applied if a weapon was present, unless it was clearly improbable that the weapon

was connected with the offense. Id. cmt. n.3. The commentary states that an

unloaded hunting rifle in a residential closet would be an example of clear

improbability. Id. The government bears the burden of establishing the existence

of the weapon and its proximity to the site of the offense. United States v. Hall,

46 F.3d 62, 63 (11th Cir. 1995) (per curiam). Once the government meets its

burden, the burden shifts to the defendant to “show that a connection between the

firearm and the offense is clearly improbable.” Id.

Even if a co-conspirator was the actual possessor of the weapon, the weapon

enhancement under § 2D1.1(b)(1) may apply. United States v. Stanley, 24 F.3d

1314, 1322-23 (11th Cir. 1994). If the enhancement is based on a co-conspirator’s
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possession, the government must establish that the conspirator was charged and

possessed the weapon in furtherance of the conspiracy, and that the defendant

whose offense level is being enhanced was a member of the conspiracy at the time

of the possession. Id. Furthermore, we held in United States v. Pessefall, 27 F.3d

511, 515 (11th Cir. 1994), that it was reasonably foreseeable that a co-conspirator

would use a weapon to protect cocaine during unloading.

Having reviewed the record and the briefs of the parties, we discern no error.

Because Flores-Moya boarded the vessel in order to participate in a drug

trafficking conspiracy, and weapons intended for protection were found onboard,

the district court properly increased his offense level by two levels under

U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. Accordingly, we

affirm the district court’s sentence. 

AFFIRMED