In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-1493 & 02-1734

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

FERNANDO CORRAL and FERNANDO LOPEZ,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 CR 230—Rudy Lozano, Judge.

____________

ARGUED FEBRUARY 12, 2003—DECIDED APRIL 1, 2003

____________

Before BAUER, POSNER, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge. Defendants Fernando Corral

and Fernando Lopez pleaded guilty to possession with

intent to distribute a quantity of powder cocaine. The

district court found Corral responsible for more than six,

but less than seven, kilograms of cocaine and sentenced

him to eighty months’ imprisonment. Lopez was sentenced

to sixty months in prison followed by three years of supervised release. Corral appeals the district court’s sentence

to the extent the court held him responsible for five kilograms of cocaine, which he admitted to possessing during

negotiations with a government informant. Lopez, however,

appeals the district court’s imposition of a sentence en-
2 Nos. 02-1493 & 02-1734

hancement under § 2D1.1(b)(1) of the United States Sentencing Guidelines Manual (“USSG”) for possession of a

handgun. He also appeals the district court’s decision not

to impose a sentence reduction under USSG § 3B1.2(b)

because he was not a “minor participant” in the offense.

For the reasons set forth below, we affirm as to both Defendants.

BACKGROUND

Throughout 1999 and 2000, East Chicago, Indiana, police

officer David Zamora worked with a task force from the

Drug Enforcement Administration (DEA) on an investigation into drug trafficking by Corral. Officers utilized a

confidential informant to conduct several low-quantity

purchases of cocaine from Corral, usually in the two to

four ounce range. As a result of these transactions, officers

directed the source to negotiate a two-kilogram purchase

with Corral in March 2000. During those negotiations,

which were taped and monitored by police, Corral stated

that he had recently purchased five kilograms of cocaine

but returned the drugs because they were of poor quality.

Corral added that he was expecting a replacement shipment.

Corral arranged to make delivery of one kilogram of

cocaine to the informant in December 2000, and police

established surveillance of Corral on the day of delivery.

During that surveillance, officers witnessed Lopez, whom

Zamora recognized as a dealer from nearby Hammond,

Indiana, meet with Corral in front of a bar in East Chicago.

Officers then followed Lopez to an apartment at 4817

Baring Street, while continuing separate surveillance

of Corral.

Some time later, Corral arrived at 4817 Baring Street,

entered the residence, and remained inside the home for

a short time before leaving. Zamora then directed the
Nos. 02-1493 & 02-1734 3

informant to call Corral and ask if Corral had the kilogram

of cocaine. Corral responded affirmatively, and officers

arrested him shortly thereafter while he was driving in a

car with his girlfriend and her young son. The kilogram of

cocaine was seized from Corral’s girlfriend, who stated

that Corral had handed it to her when police approached

the car.

After being Mirandized, Corral told officers that he had

purchased the drugs from a person named “Jose” at the

address on Baring Street. Corral pointed out the exact

apartment to officers and claimed that “Jose” lived there

with Lopez. Officers transported Corral to jail and continued surveillance of the home. Not long after Corral’s

arrest, two men left the apartment, and police stopped the

men, who identified themselves as Mizell Quinones and

Jose Herredia. Herredia told police that he lived at 4817

Baring Street with Lopez and gave consent to search the

apartment.

When they arrived at the apartment, Herredia revoked

his consent to search the home, stating that Lopez was

the actual resident of the apartment and would be the

one needed to give consent. The agents knocked on the

door for five minutes but received no answer. Zamora

then obtained a search warrant and entered the apartment. There, they discovered Lopez hiding under clothing

in a closet.

Police also found over five pounds of marijuana hidden

in a bean bag chair, pieces of plastic pipe consistent with

the type used to package the kilogram of cocaine recovered from Corral, approximately $14,000 taped to the bottom of a chair, a small quantity of cocaine hidden in the

bathroom, and a gun hidden in the tank of the toilet. The

entire apartment was sparsely furnished and appeared

to police to be a drug stash house, rather than a normal

residence.
4 Nos. 02-1493 & 02-1734

1 The Presentence Investigation Report (PSR) prepared for

Corral’s sentencing, however, recommended that Corral be held

responsible for no less than sixty kilograms of cocaine. The PSR

relied upon statements by the police informant, which indicated

that Corral had been moving as much as three to five kilograms

per month over a long period of time. Because police were unable

to document fully this alleged activity, the district court chose

to depart from the PSR’s recommendation when sentencing

Corral.

Corral and Lopez were charged and indicted with conspiracy to possess with intent to distribute (Count 1) and

possession with intent to distribute (Count 2) a quantity

of powder cocaine. Both men subsequently pleaded guilty

to the second count, a violation of 21 U.S.C. § 841(a)(1),

without a plea agreement. The district court sentenced

Corral to eighty months’ imprisonment, finding him responsible for more than six, but less than seven, kilograms

of cocaine.1

 The court arrived at this range by adding

three quantities: 1) the various ounce quantities Corral

sold to the informant; 2) the negotiated-for two kilograms;

and 3) the additional five kilograms Corral admitted to

receiving during negotiations with the informant. Corral

appeals only the third quantity for which the district

court found him responsible, arguing that his statement

about the five kilograms amounted to mere puffing and

that he never possessed that amount.

The district court sentenced Lopez to sixty months’

imprisonment, increased his sentence for possession of

the firearm found in the bathroom pursuant to USSG

§ 2D1.1(b)(1), but refused to apply a sentence reduction

under USSG § 3B1.2(b) for being a “minor participant.”

Lopez bases his appeal on a claim that he did not live at

the Baring Street apartment and was only involved in

this transaction to serve as a one-time messenger and to

allow Corral entry to the apartment to pick up the drugs.
Nos. 02-1493 & 02-1734 5

In support of his argument, Lopez presented testimony

at his sentencing hearing from his former landlord and

girlfriend, both of whom claimed Lopez lived at an address

on 150th Street in Hammond, Indiana, in December 2000.

The landlord, however, could not produce a receipt for

rent received from Lopez for that month, though he had

receipts for previous months. He also stated that Lopez’s

girlfriend had told him that Lopez no longer lived there

and that she had removed his personal belongings. Agent

Zamora, Corral, and Herredia each testified that Lopez

lived in the apartment on Baring Street. The district

court found that Lopez either lived in the apartment or

worked out of it for some time prior to his arrest.

ANALYSIS

A. Standard of Review

Because Corral and Lopez present only factual challenges, our review of the district court’s factual determinations at sentencing is limited to a clearly erroneous standard. United States v. Buggs, 904 F.2d 1070, 1078 (7th

Cir. 1990). We will not overturn those findings unless

we are left with the definite and firm conviction that a

mistake has been made. United States v. Bonilla-Comacho,

121 F.3d 287, 292 (7th Cir. 1997).

B. Corral’s Relevant Drug Quantity

Corral’s only argument is that the district court committed clear error when it determined that he was responsible

for an additional five kilograms of cocaine, beyond the

negotiated two kilograms. The court’s determination was

based on a statement made by Corral and recorded by

police, while Corral was negotiating a multi-kilogram

purchase with the government’s informant. During those

negotiations, Corral told the informant that he recently
6 Nos. 02-1493 & 02-1734

returned five kilograms of cocaine because the quality

was poor and that he was expecting a replacement shipment soon. Corral now claims that this statement was

merely puffing to bolster his bargaining position by showing his interest in quality control.

By arguing that his statement constituted puffing,

however, Corral has conceded that the statement was

made as a part of his negotiations for a multi-kilogram

purchase of cocaine with the government informant. Application Note 12 to USSG § 2D1.1 allows the sentencing

court to consider “[t]ypes and quantities of drugs not

specified in the count of conviction” and to approximate

those quantities, when appropriate, in order to determine the proper offense level. USSG § 2D1.1, cmt. n.12

(2002). More specifically, Application Note 12 directs the

court to consider negotiated quantities from an uncompleted

drug transaction, unless “the defendant establishes that

he or she did not intend to provide, or was not reasonably

capable of providing,” the negotiated quantity. Id.

We have interpreted this note to mean that negotiated

quantities of undelivered drugs can be included so long

as there was true negotiation and not idle talk. BonillaComacho, 121 F.3d at 291-92; United States v. Garcia, 69

F.3d 810, 820 (7th Cir. 1995). If a defendant exhibits

the intent and ability to provide multi-kilogram quantities of narcotics, his statements constitute true negotiation and not idle talk. Bonilla-Comacho, 121 F.3d at 292.

In Corral’s case, nothing in his statement indicates

that he was merely bragging to increase his bargaining

position. See id. (“Nothing in Bonilla’s statement indicates

that he was bragging about something he could not accomplish or that he was trying to seem like a bigger

drug operator than he really was.”). Prior to negotiating

a multi-kilogram purchase, the informant had purchased

several ounces of cocaine from Corral on multiple occa-
Nos. 02-1493 & 02-1734 7

sions over several months. The two had established an

ongoing, business relationship and Corral did not point to

evidence demonstrating that the informant would look

elsewhere for a supply of drugs, thereby revealing a need

to puff about his prowess as a supplier.

Corral simply made the statement concerning five

kilograms in the midst of negotiations for a two kilogram

purchase, revealing both his intent and ability to obtain

multi-kilogram quantities of cocaine. Initially, it demonstrated that he had obtained large quantities in the past

and had the ability to do so in the future. In fact, his ability to obtain a large quantity of drugs is corroborated by

the fact that he was arrested in possession of one kilogram.

Additionally, the government’s source informed police

that Corral had been moving as much as three to five

kilograms per month over a long period of time. Because

police were not able to document fully the entirety of

Corral’s trafficking, the district court did not sentence

Corral based upon the quantity (no less than 60 kilograms)

recommended in his PSR. We note, however, that the

district court was free to consider how the informant’s

statement further corroborated Corral’s intent and ability

to deal in multi-kilogram quantities of cocaine.

This Court has long relied on a defendant’s admissions

to hold that defendant responsible for a certain quantity

of drugs, and we see no reason why Corral’s admission

should be treated differently. See United States v. Spiller,

261 F.3d 683, 691 (7th Cir. 2001) (holding the defendant

responsible for dealing 28,000 grams of crack cocaine as

evidenced by handwritten ledgers belonging to the defendant in which he recorded drug sales); United States v.

Joiner, 183 F.3d 635, 640-41 (7th Cir. 1999) (holding that

the district court did not clearly err by relying on the

defendants’ own statements to determine the drug quantity

for which the defendants were responsible); United States
8 Nos. 02-1493 & 02-1734

v. Jarrett, 133 F.3d 519, 530-31 (7th Cir. 1998) (affirming

the district court’s sentence that relied on undercover

buys as well as the defendants’ own admissions in recorded conversations regarding drug activities); United

States v. Benitez, 92 F.3d 528, 538-39 (7th Cir. 1996) (noting

the district court’s proper reliance on recorded conversations of the defendant to determine the quantity for which

she was responsible); United States v. Ferguson, 35 F.3d

327, 333 (7th Cir. 1994) (finding no clear error where the

district court determined the quantity for which the

defendant was responsible based, in part, upon the defendant’s own admissions). Accordingly, we find that the

district court did not commit clear error by holding

Corral responsible for an additional five kilograms of cocaine in determining his proper offense level.

C. Lopez’s Sentence Enhancement for Possession

of a Firearm

Lopez’s first argument is that the district court committed clear error by applying a two-level increase in his

sentence pursuant to USSG § 2D1.1(b)(1) because he was

in possession of a firearm when arrested. Application

Note 3 to § 2D1.1 provides that the enhancement “should

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

improbable that the weapon was connected with the offense.” USSG § 2D1.1, cmt. n.3. The government, therefore,

must first prove by a preponderance of the evidence that

the defendant possessed the firearm. United States v.

Thomas, 294 F.3d 899, 905-06 (7th Cir. 2002); United

States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000).

“Actual possession of the firearm need not be established

in order to trigger the enhancement. Instead, proof of

constructive possession, that is, that the defendant had

the power and the intention to exercise dominion or control of the firearm, is sufficient to warrant the enhance-
Nos. 02-1493 & 02-1734 9

ment.” Thomas, 294 F.3d at 906 (internal citations omitted).

Once possession is established, the burden shifts to the

defendant to prove that it was clearly improbable that the

firearm was possessed in connection with the offense.

Harris, 230 F.3d at 1057.

There is no question that Lopez did not physically possess the gun when arrested. He was found hiding under

clothing in a closet; the gun was in the toilet tank in the

bathroom. The issues before us, therefore, are: 1) whether

the government proved that Lopez constructively possessed the gun found in the toilet tank; and 2) whether

Lopez showed that it was clearly improbable that the

gun was connected to the offense.

1. Whether Lopez “possessed” the gun

In United States v. Singleton, this Court upheld application of the sentence enhancement when the defendants

were arrested in a home they had transformed into a drug

distribution center. United States v. Singleton, 125 F.3d

1097, 1109-10 (7th Cir. 1997). Inside that home, police

recovered a small arsenal of six weapons, ammunition, and

drugs hidden strategically throughout. Id. We held that,

while no gun was found in the hands of the defendants

when arrested, the sentence enhancement in § 2D1.1(b)(1)

still applied because they constructively possessed the

guns. Id. We have, likewise, held that the § 2D1.1(b)(1)

enhancement can be applied when the defendant knows

of weapons stored in a drug stash house. United States

v. Brack, 188 F.3d 748, 764 (7th Cir. 1999).

Here, the district court made a factual finding that

the Baring Street apartment was a stash house. It was

sparsely furnished, containing almost no food, few clothes,

and little furniture. In fact, the only furniture consisted

of a mattress, a small television, a table (upon which police found drug packing material consistent with that
10 Nos. 02-1493 & 02-1734

in Corral’s possession), and a couple of chairs, one with

$14,000 taped to the bottom of it. Police also found over

five pounds of marijuana as well as a small quantity of

cocaine and a gun hidden in the bathroom. The district

court further found that Lopez was a trusted part of this

drug operation. He was left in sole possession of the

apartment in order to allow Corral entry to pick up the

drugs. As the sole occupant of a drug stash house on the

day he was arrested, Lopez clearly had the power and

intention to exercise dominion and control over the entire

apartment. The gun’s location in the bathroom does not

diminish Lopez’s control over it.

Lopez claims that he did not know of the gun’s presence

and location in the apartment and also asserts that he

could not have possessed the gun because he was only in

the apartment for the one-time, limited purpose of letting

Corral in to pick up the drugs. The district court, however, reasonably chose not to accept Lopez’s testimony and

further based application of the § 2D1.1(b)(1) enhancement on credible evidence demonstrating that Lopez actually lived in the apartment or worked in the residence

on prior occasions. We too reject Lopez’s assertion that

his presence in the apartment was a one-time deal. Accordingly, we find that Lopez constructively possessed the

gun in question.

2. Whether it was “clearly improbable” the gun

was connected to the offense

The next question is whether it was clearly improbable

that the gun was connected to the drug offense. As we

have stated, guns found in close proximity to drug activity are presumptively connected to that activity. United

States v. Adams, 125 F.3d 586, 597 (7th Cir. 1997). In fact,

we have held that the § 2D1.1(b)(1) enhancement can be

applied when the connection between the gun and the
Nos. 02-1493 & 02-1734 11

drugs is only temporal in nature. United States v. Grimm,

170 F.3d 760, 768 (7th Cir. 1999). In United States v.

Grimm, we held that it was not clearly improbable to

conclude that a connection existed between a gun found

in the defendant’s trunk when he was arrested and a

drug shipment made with the same car six weeks prior

to the arrest. Id.

In the case at bar, far more than temporal proximity

connects Lopez to the gun found in the bathroom. The

apartment was clearly a stash house being used for illicit

drug activity. Whether Lopez resided in the apartment

or worked there on prior occasions, as the district court

found, or whether he was in the apartment for the first

time, as he claims, does not affect the connection between the drug activity and the gun. There is no other

explanation for the presence of the gun in that apartment than to utilize it in connection with the drug activity taking place inside. Lopez points to nothing that

would contradict this strong presumption, and therefore,

we find that the district court properly applied the

§ 2D1.1(b)(1) sentence enhancement. Finally, Lopez’s

request that the case be remanded for a determination

of his eligibility under USSG § 5C1.2 is denied because

we affirm the district court’s conclusion that Lopez possessed a firearm in connection with the offense.

D. Lopez’s Role in the Offense

Lopez’s second argument is that the district court clearly

erred by failing to apply a two-level reduction in his sentence because he was a “minor participant” in the offense.

According to USSG § 3B1.2(b), the defendant’s offense

level may be decreased by two levels if the sentencing

court finds him to have been a minor participant in the

offense. USSG § 3B1.2(b) (2002). We have held that a

minor participant is one who is substantially less culpable
12 Nos. 02-1493 & 02-1734

than the average participant. United States v. Jones, 55

F.3d 289, 293 (7th Cir. 1995). In making this determination,

however, we examine “whether the defendant was a minor

participant in the crime for which he was convicted, not

whether he was a minor participant in some broader

conspiracy that may have surrounded it.” United States

v. Brown, 136 F.3d 1176, 1185-86 (7th Cir. 1998). The

burden lies upon the defendant to establish that he was

substantially less culpable, though we will apply this

sentence reduction infrequently. Id. at 1185, 1186.

Lopez argues that his role was minor because he was

not a party to the drug transaction and served only as

a messenger to let Corral know the drugs were ready for

pick up and to admit Corral to the apartment for that

purpose. The district court, however, found that Lopez

either resided in the Baring Street apartment or worked

out of that apartment prior to his arrest. The court also

concluded, quite reasonably, that the apartment served

primarily as a stash house for the parties’ drug business.

Lopez cannot claim he was unaware of drug operations

within the apartment.

By virtue of agreeing to maintain the stash house

and open it to Corral, Lopez’s argument that he was

substantially less culpable than others must fail. First, he

was entrusted with delivery of a large quantity (one

kilogram) of cocaine. Second, Lopez was trusted with sole

possession of the apartment, which contained a large

quantity of marijuana, $14,000, a quantity of cocaine, and

a firearm. Finally, he was aware of Corral’s purpose

for picking up the drugs (to sell them) and Lopez made

that possible through his own actions. See id. at 1186

(noting that one cannot be a minor participant with respect to one’s own actions).

Lopez further argues that his minor role is supported

by the fact that he did not stand to profit from the trans-
Nos. 02-1493 & 02-1734 13

action. We have held, however, that whether a participant

stands to profit from the crime does not reflect upon that

person’s role within the offense. Id. at 1186. Lopez pleaded

guilty to possession with intent to distribute cocaine

and each of his actions was directed at possessing the

cocaine and making distribution possible by giving Corral

access to the apartment. For those reasons, we find that

the district court did not clearly err by determining that

Lopez was not substantially less culpable than others

and in denying him a sentence reduction under § 3B1.2(b).

The decision of the district court as to both Corral and

Lopez is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-1-03