[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 11312

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus ALEXIS BACA MARTINEZ,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 4:20

- cr

- 10009

- JLK

- 1

____________________ USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 1 of 72 Opinion of the Court 21

- 11312

Before WILLIAM PRYOR, Chief Judge, LUCK and BRASHER, Circuit Judges.

PER CURIAM: Alexis Martinez appeals his sentence of 120 months of imprisonment fo llowing his plea of guilty to possessin g methamphetamine with intent to distribute. 21 U.S.C. § 841(a)(1). Martinez challenges the enhancement of his sentence by two levels for possessing a firearm in connection with his drug crim e, U nited S tates S entencing G uidelines Manual § 2D1.1(b)(1) (Nov. 2018)
, and the denial of safety

- valve relief
, id. § 5C1.2(a)(2). We affirm. Police officers in Key West, Flori da, stopped Martinez for a traffic offense. A narcotics canine alerted to the presence of drugson the passenger side of the vehicle, where Martinez’s wife was sitting in the front seat and their newborn baby was secured in the back seat. Officers searched the vehicle and foun d a hidden compartment containing a digital scale and 2.26 kilograms of methamphetamine. Officers also discover e d three rounds of ammunition
in the center console of the vehicle, an empty ammunition magazine in the back floorboard, and an unloaded AR

- 15 rifle and a box of sixteen rounds of ammunition in the trunk.
Martinez admitted in his factual proffer that he was paid to transport the methamphetamine from Arizona to Key West and that he had been paid to transport drugs on ten other occasions

. USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 2 of 721

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Martinez also admitted that his rifle, which he had purchased in
Arizona , was in the trunk of his vehicle

. Martinez’s presentence investigation report provided a base offense level of 32
, id. § 2D1.1(c)(4), added two levels for his possession of a firearm, id. § 2D1.1(b)(1), and subtracted three levels for his acceptance of responsibility, id. § 3E1.1. Based on Martinez’s total offense level of 31 and criminal history of I, the presenten ce report provid e d a n advisory sentencing rang e of 108 to 135 months of imprisonment. But M artinez ’s minimum statutory sentence of 120 months of imprisonment , 21 U.S.C. § 841(b)(1)(A)(viii), became the low end of his sentencing range, U.S.S.G. § 5G1.1(b)

. Martinez objected to the two

- level enhancement of his sentence for possessing a firearm and it s effect of “disqualif [ying] [ hi m] from a safety valve adjustment pursuant to U.S.S.G. § 5C1.2.” Martinez alleged that his “rifle was in the trunk . . . to keep i t in a safe place away from my children

. ” He also alleged that “the ammunition which was found in the car [was] the wrong caliber to be shot from the rifle” and
, “[e]ven if the ammunition [could] be fired from this rifle, . . . [his] position [was] that the weapon was in the car to keep it away from his family

– not in furtherance of the transportation of the controlled substance.” Martinez argued that, if the district co urt “determine[d] that the 2 level weapon enhancement is inappropriate,” he “will then receive a 2 level reduction to his guidelines,” and could receive a sentence less than “the mandatory
minimum [of] 120 months .” USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 3 of 74 Opinion of the Court 21

- 11312
The United States responded that Martinez possessed a firearm during his drug crime and had failed to establish that “it [was]clearly improbable that the weapon was connected with [his] offense.” See U.S.S.G. § 2D1.1 & cmt. n.11. At sentencing
, a special agent of the Department of Homeland Secur ity describ ed discover ing ammunition and a magazine inside Martinez’s vehicle and his rifle near a box of ammunition
, a suitcase, a fishing pole, and some household items in the trunk

. The agent authenticated photographs taken of Martinez’s vehicle and tru nk. The a gent also testified that Martinez’s rifle use d .223 caliber round s , he possessed .222 caliber rounds , and the smaller caliber round could “ chamber ,” b ut “did not extract properly” from
, the rifle. The agent acknowledged that the ammunition and rifle were never test fired. The district court overruled Martinez’s objection to the two

level firearm enhancement. The district court found that “the Government

. . . established clearly that the weapon was

. . . knowingly, intentionally involved with this particular drug transaction .” The district court based its finding on Martinez’s experienc e that ma de him “ aware of the dangers he faced in transporting narcotics across the United States and in his car ” ; on “t he fact that he brought very few things along with him except the semiautomatic rifle and 16 rounds of ammunition, [and] clothes that were in the trunk of the

car ”; and on the location of “ the firearm

. . . in plain sight, on top, readily available, s hould someone open the trunk and reach in to get it .” The district court rejected Martinez’s argument that the rifle was “[un]usable without the . . . clip ” because there was “no USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 4 of 721

- 11312 Opinion of the Court 5
proof that he did not know that he might have trouble with cal ibering or nonc alibering” or that he “ didn’t know he had a slightly different ammo than the gun usually took . . . .” The district court also rejecte d as implausible Martinez’s ar gument that he traveled with the firearm to protect his children . The district court reached “the inescapable conclusion” that Martinez’s decision to “put [the rifle] in the trunk of the car and br [ing] it with him, laying it right on top ” revealed “ that he brought the gun along for use, if it should be needed, in this drug transportation . . . .” The district court denied Martinez’s request for a downward variance and sentenced him to 120 months of imprisonment. Th at decision followed the prosecutor’s argument that “Martinez does not qualify for safety valve” and “ the lowest sentence . . . [to] give him is

. . . 120 months

. ” T he prosecutor stated he “[did not] know if [ def ense counsel ] [was] going to object to that,” and defense counsel “agree[ d ] that the 120 month s sentence

. . . is necessary to serve the 3553(a) facto rs

. ” Later, Martinez “ simply renew[ed] [ his ] object ion to the propriety of the enhancement for the firearm in PSI, paragraph one .”
We review for clear error the factual finding that Martinez possessed a firearm in connection with his drug offense. United States v. George , 872 F.3d 1197, 1204 (11th Cir. 2017). “Under the clearly erroneous standard, we must affirm the district court unlessreview of the entire record leaves us with the definite and firm conviction that a mistake has bee n committed.” United States v. McPhee , 336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 5 of 76 Opinion of the Court 21

- 11312
States v. Engelhard Corp. , 126 F.3d 1302, 1305 (11th Cir. 1997) ). “As long as the district court ’ s findings are plausible, we may not reverse the district court eve n if we would have decided the case differently.” Id. (quoting Engelhard ). A defendant is subject to a two

- level increase in his base offense level if he possessed a dangerous weapon in connection with a drug offense. U.S.S.G. § 2D1.1(b)(1). “ To justify a firearms enhancement, the government must either establish by a preponderance of the evidence that the firearm was present at the site of the charged conduct or prove that the defendant possessed a firearm during conduct associated with the offense of conv iction. ” United States v. Stallings , 463 F.3d 1218, 1220 (11th Cir. 2006). Such evidence shifts the burden to the defendant to prove that a “ connection between the weapon and the offense was clearly improbable.” Id. (internal quotation marks omitted); U.S. S.G. § 2D1.1(b)(1) cmt. n.11 ( “ The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. ” ). The district court did not clearly err by finding that Martinez possessed a rifle in connection with his drug crime. “[G]uns are a tool of the drug trade,” United States v. Pham , 463 F.3d 1239, 1246 (11th Cir. 2006), and Martinez admitted that he had the rifle, ammunition, and a n ammunition magazine in the vehicle he was using to transport illegal drugs from Arizona to Florida

. To determine whether a connection exists between “guns found in proximity to drugs,” t he “ potential [to] use [ a gun ] is critical” because USCA11 Case: 21-11312 Date Filed: 11/23/2021 Page: 6 of 721

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“ there is a strong presumption that a defendant aware o f the
weapon ’ s presence will think of using it if his illegal activities are threatened. ” U nited States v. Carillo

–

Ayala , 713 F.3d 82, 92 (11th Cir.2013)

. The district court reasonably inferr ed that Martinez, a seasoned narcotics courier, knew the hazards of moving narcotics

cross

- country , brought a firearm to protect his valuable cargo, kept ammunition within reach, and stored his weapon where it would be out of plain sight but q uickly accessed. Th e district court was entitled to find that Martinez’s “weapon was . . . knowingly [and] intentionally involved with this particular drug transaction.” Martinez argues that he is eligible for a reduction of his sentence under the safety valve, but he waived his right to challenge the denial of such sentencing relief . Under the doctrine of invited

error, when a defendant “ induces or invites the district court into making an error [,] ” “ he cannot later complain that any resulting error is reversible. ” United States v. Brannan , 562 F.3d 1300, 1306 (11th Cir. 2009)

. Martinez s tated in his objection to his presentence report , and agreed at sentencing
, that if the firearm enhancement applied to him, he was “disqualified from a safety valve adjustment.” Martinez “cannot [now] cry foul” based on the denial of safety

- valve relief. Id.

We AFFIRM Martinez’s sentence

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