FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 16, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15141

Non-Argument Calendar

________________________

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

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DOUGLAS NELSON-MARTINEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 16, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Douglas Nelson-Martinez appeals the sentence he received after being
 On appeal, Nelson-Martinez attempts to adopt his codefendants’ briefs that have been 1

filed in separate appellate cases. He failed, however, to separately move to be permitted to adopt

the briefs and describe in detail the portions of the briefs that he desires to adopt. Therefore, we

do not consider him to have adopted any portion of his codefendants’ briefs. See 11th Cir. R.

28-1(f) (requiring “a statement describing in detail which briefs and which portions of those

briefs are adopted”); United States v. Bichsel, 156 F.3d 1148, 1150 n.1 (11th Cir. 1998) (per

curiam) (holding that defendants may not adopt and rely on briefs of another case unless they

separately move for adoption and the motion is granted). 

2

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). His aggregate sentence

of 87 months’ incarceration, followed by 5 years supervised release, was at the low

end of the Guidelines range. On appeal, Nelson-Martinez 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.1

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
3

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,

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.
4

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

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 Nelson-Martinez joined the conspiracy knowing that weapons were

onboard the vessel and that cocaine was being transported, 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