United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2486

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Jorge Giovani Muniz Ochoa, *

*

Defendant - Appellant. *

___________ Appeals from the United States

District Court for the

No. 10-2522 District of Minnesota.

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Elvis Montes Trill, *

*

Defendant - Appellant. *

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Submitted: February 18, 2011

Filed: June 29, 2011

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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.

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1

The Honorable Michael J. Davis, Chief Judge of the United States District

Court for the District of Minnesota.

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LOKEN, Circuit Judge.

Jorge Giovani Muniz Ochoa, Elvis Montes Trill, and nine others were charged

with conspiracy to distribute 500 grams or more of methamphetamine and 50 grams

or more of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

and 846. Muniz Ochoa pleaded guilty to that charge, a Class A felony. Montes Trill

pleaded guilty to conspiring to distribute fifty grams or more of methamphetamine

mixture, a Class B felony. A defendant is eligible for safety-valve relief from an

applicable mandatory minimum sentence if the district court finds (among other

conditions) that “the defendant did not use . . . a firearm or other dangerous weapon

(or induce another participant to do so) in connection with the offense.” 18 U.S.C.

§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). The now-advisory Guidelines authorize a twolevel enhancement to a drug-trafficking sentence “[i]f a dangerous weapon (including

a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In these cases, a Probation

Officer prepared separate Presentence Investigation Reports (PSR). Each contained

the following recommendations: 

Specific Offense Characteristics: Because a dangerous weapon was

possessed, a 2-level increase is applied at § 2D1.1(b)(1).

The defendant is not eligible for the safety-valve provision because a

firearm was possessed during this offense. § 5C1.2(a)(1). Specifically,

the defendant was arrested in a vehicle with a loaded firearm and a large

quantity of methamphetamine. Therefore, a 2-level decrease under

§ 2D1.1(b)(11) is not applicable.

Muniz Ochoa and Montes Trill objected to these recommendations. At sentencing,

the district court1

 applied the § 2D1.1(b)(1) two-level enhancement and sentenced

each defendant to his mandatory minimum sentence, 120 months for Muniz Ochoa
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and 60 months for Montes Trill. They separately appeal, arguing the district court

procedurally erred in imposing the § 2D1.1(b)(1) enhancement. In addition, Muniz

Ochoa argues that the court erred in denying him safety-valve relief from the statutory

minimum sentence. We consolidated the appeals and now affirm. 

I.

The district court held separate evidentiary sentencing hearings on June 23,

2010. The government’s only witness at both hearings was Christian Armentilla Soto,

another conspirator who also pleaded guilty and was sentenced later that day. The

§ 2D1.1(b)(1) firearm enhancements turned on the conduct of Muniz Ochoa and

Montes Trill between October 5 and 7, 2009. We will integrate Armentilla Soto’s

consistent testimony at the two hearings for convenience.

Armentilla Soto testified that he and Muniz Ochoa drove from Washington

State to a farm outside Worthington, Minnesota. They met Montes Trill on October

5 and packaged methamphetamine that had already been delivered to the farm for

distribution. While at the farm, Muniz Ochoa removed a firearm from a compartment

located behind the vehicle’s dashboard stereo and showed it to Armentilla Soto. The

next morning, Montes Trill drove the trio to Minneapolis, where they stayed that

night. When they arrived at the hotel where Armentilla Soto and Montes Trill would

stay, Muniz Ochoa (in the passenger seat) pulled out the stereo, handed it to Montes

Trill, removed the gun and drugs from the compartment, and placed them in a black

suitcase. Inside the hotel room, Muniz Ochoa hid the drugs under a sink. He then

unloaded the gun, gave it to Armentilla Soto, instructed him to reload it, and placed

the gun under a mattress on one of the beds, with Montes Trill seated on a second bed

watching from a few feet away. Muniz Ochoa was then driven to a second hotel

where he spent the night with his girlfriend.
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Armentilla Soto testified that the next morning (October 7) he removed the

drugs from under the sink and the gun from under the mattress, placed them in the

suitcase, and went to the car, as Muniz Ochoa had instructed. In the car, Montes Trill

removed the stereo, Armentilla Soto put the gun and drugs in the compartment, and

Montes Trill replaced the stereo. They then picked up Muniz Ochoa, and Montes Trill

drove the trio from Minneapolis to a hotel near Duluth, Minnesota, where Muniz

Ochoa had arranged to sell one pound of methamphetamine to an undercover agent.

Shortly before arriving at the hotel, Muniz Ochoa, riding in the passenger seat,

removed a portion of the drugs from the compartment behind the stereo. 

It is undisputed that Muniz Ochoa then entered the hotel alone and was arrested

after completing the sale of 213 grams of actual methamphetamine. Montes Trill and

Armentilla Soto remained in the car and were arrested in the hotel parking lot. A

search of the vehicle uncovered 81 more grams of actual methamphetamine and a

handgun with a loaded magazine in a compartment behind the dashboard stereo. In

their plea agreements, both Muniz Ochoa and Montes Trill admitted possessing with

intent to distribute all the methamphetamine seized on October 7, including the 81

grams found in the compartment. They did not admit possessing the handgun. 

At his sentencing hearing, Muniz Ochoa admitted recruiting Armentilla Soto

in Washington State to help distribute drugs in Minnesota. Muniz Ochoa testified that

Armentilla Soto brought the gun from Washington to Minnesota and that Muniz

Ochoa first saw the gun when Armentilla Soto removed it from the car after they

arrived in Worthington to meet Montes Trill. According to Muniz Ochoa, Armentilla

Soto never said he was bringing the gun from Worthington to Minneapolis or to

Duluth, and Muniz Ochoa did not see the gun after the trio left Worthington. At his

sentencing hearing, Montes Trill admitted seeing Muniz Ochoa with the gun while in

Worthington the night before they left for Minneapolis but testified he did not see it

again until he was arrested in Duluth and the car was searched.
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The district court found that undisputed facts established that both defendants

possessed the firearm in connection with the drug offense and imposed a two-level

enhancement under § 2D1.1(b)(1). Both defendants object to these findings, which

we review for clear error. United States v. Denis, 560 F.3d 872, 873 (8th Cir. 2009),

cert. denied, 130 S. Ct. 314 (2009). The government has the burden to prove these

issues by a preponderance of the evidence. United States v. Harris, 310 F.3d 1105,

1112 (8th Cir. 2002), cert. denied, 538 U.S. 1052 (2003). 

A. Montes Trill. Montes Trill argues that the government failed to prove that

he possessed the firearm or even knew it was present in the vehicle at the time of his

arrest. Possession may be actual or constructive. Denis, 560 F.3d at 873.

“Constructive possession is established by proof that the defendant had control over

the place where the firearm was located, or control, ownership, or dominion over the

firearm itself.” United States v. Cox, 627 F.3d 1083, 1085 (8th Cir. 2010); United

States v. Williams, 10 F.3d 590, 595 (8th Cir. 1993). While Montes Trill admits

previously seeing Muniz Ochoa handle the weapon, he argues that he did not have the

ability to control the weapon and did not know it would be used to further their drug

activity. 

Montes Trill was arrested after he knowingly drove Muniz Ochoa from

Minneapolis to Duluth to complete a methamphetamine sale. He saw Muniz Ochoa

remove the drugs to be sold from a dashboard compartment where a loaded firearm

and more methamphetamine were found following their arrest. Montes Trill admitted

seeing Muniz Ochoa in possession of the weapon at the farm where they packaged the

drugs prior to leaving for Duluth. Thus, he could reasonably anticipate that the

firearm would continue to protect their contraband on the trip to Duluth where it

would be distributed. These undisputed facts were more than sufficient to support a

finding that Montes Trill and his conspirators were in actual and constructive

possession of a dangerous weapon in connection with their drug trafficking offense.

See United States v. Braggs, 317 F.3d 901, 905 (8th Cir. 2003); United States v.
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Atkins, 250 F.3d 1203, 1214 (8th Cir. 2001). The district court did not clearly err in

applying the U.S.S.G. § 2D1.1(b)(1) enhancement. Montes Trill conceded in the

district court that this enhancement made him ineligible for safety-valve relief. 

B. Muniz Ochoa. Muniz Ochoa similarly argues that the district court erred

in finding he possessed the gun for purposes of U.S.S.G. § 2D1.1(b)(1). He further

argues that it was clearly improbable that the gun was connected to the drug sale and,

in any event, that the § 2D1.1(b)(1) enhancement does not make him ineligible for

safety-valve relief.

The testimony of Armentilla Soto, if believed, clearly established that Muniz

Ochoa was in actual and constructive possession of a firearm that he used in

connection with this drug offense. See U.S.S.G. § 2D1.1. cmt. (n.3) (apply the

enhancement “if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense”). But the district court did not expressly

credit Armentilla Soto’s testimony. Rather, in its post-sentencing Statement of

Reasons for Imposing Sentence, the court found: 

In this case, the Defendant admitted that he knew that co-defendant Soto

brought a gun with him when the two traveled to Minnesota from

Washington for the purpose of engaging in drug activity. Since Soto was

not a resident of Minnesota, the Defendant should have known that it

was likely that the gun was still with Soto when they drove to Duluth

with the drugs. Furthermore, the Defendant has admitted that he

possessed the 81.4 grams of actual methamphetamine that was found

with the gun in the car console.

This finding was more than sufficient to support imposing the § 2D1.1(b)(1)

enhancement. Applying the relevant conduct principles of the Guidelines, the district

court properly imposed the enhancement based upon its finding that Muniz Ochoa

“should have known that it was likely that the gun was still with Soto when they drove
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to Duluth with the drugs.” See United States v. Lopez, 384 F.3d 937, 944 (8th Cir.

2004); Atkins, 250 F.3d at 1214. 

Relying on our decision in United States v. Delgado-Paz, 506 F.3d 652, 654

(8th Cir. 2007), Muniz Ochoa further argues that the district court erred in denying

him safety-valve relief. In Delgado-Paz, the district court imposed the § 2D1.1(b)(1)

enhancement based upon undisputed evidence that a firearm was possessed “at least

by” a co-conspirator. We reversed and remanded for resentencing because the court

did not “determine whether [the co-conspirator’s] possession of the firearm was

reasonably foreseeable to Delgado-Paz, or cite evidence that might lead us to conclude

the court implicitly made that determination.” 506 F.3d at 655. In remanding, we

reopened the question of safety-valve eligibility and cautioned “that possession of a

weapon by a defendant’s co-conspirator does not render the defendant ineligible for

safety-valve relief unless the government shows that the defendant induced the coconspirator’s possession” because the safety-valve statute, § 3553(f)(2), “refers only

to whether the defendant possessed a dangerous weapon.” Id. at 655-56 (emphasis in

original). See generally United States v. Matias, 465 F.3d 169, 172-74 (5th Cir.

2006).

 In United States v. Jackson, 552 F.3d 908, 910 (8th Cir. 2009), we joined the

great majority of circuits in holding that “constructive possession [of a firearm] is

sufficient to preclude a defendant from receiving safety valve relief.” We rejected the

defendant’s reliance on Delgado-Paz, because that case “addressed only whether

safety valve relief is precluded based on a co-conspirator’s reasonably foreseeable

possession.” Id. In this case, after hearing testimony and the arguments of counsel,

the district court stated: “The Court will adopt the factual statements contained in the

presentence investigation report, including those statements dealing with the

enhancement for the firearm.” The court expressly ruled only on the § 2D1.1(b)(1)

issue, finding “that the Government has met its burden and the two-[level]

enhancement applies.” Muniz Ochoa argues that the court’s “should have known”
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finding “is not sufficient to support a finding of constructive possession” that is

needed to preclude safety-valve relief. 

Although Muniz Ochoa as a passenger was not in constructive possession of the

vehicle, he had arranged to sell methamphetamine at a Duluth hotel, he admitted

possessing the methamphetamine hidden in the dashboard compartment, as the district

court expressly noted in its post-hearing Statement of Reasons for Imposing Sentence,

and he admitted recruiting Armentilla Soto to accompany him on his drug-trafficking

trip to Minnesota. This is overwhelming evidence that Muniz Ochoa was in

constructive possession of the loaded firearm found with 81.4 grams of actual

methamphetamine in the compartment. See United States v. Payne, 377 F.3d 811, 815

(8th Cir. 2004) (passenger in joint constructive possession of firearm concealed in the

car), vacated on other grounds, 543 U.S. 1112 (2005); Braggs, 317 F.3d at 905;

Atkins, 250 F.3d at 1214. “The defendant bears the burden of proving by a

preponderance of the evidence the requirements for safety valve relief.” Jackson, 552

F.3d at 909. Although the district court did not make express credibility findings

resolving the conflicting testimony of Armentilla Soto and Muniz Ochoa, it is

apparent on this record that Muniz Ochoa failed to prove that he “did not . . . possess

a firearm or other dangerous weapon (or induce another participant to do so) in

connection with the offense.” 18 U.S.C. § 3552(f)(2). Safety-valve relief was

properly denied.

The judgments of the district court are affirmed. 

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