Chicago, Illinois 60604 Argued: November 14, 2013 Decided: January 9, 2014 Before… v. Muratovic, 719 F.3d 809, 812 7th Cir. 2013 . A conviction under 18 U.S.C. 924 c…

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued: November 14, 2013
Decided: January 9, 2014
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13‐1015
UNITED STATES OF AMERICA, ] United States District Court
Plaintiff‐Appellee, ] for the Southern District of
] Indiana, Indianapolis Division
]
v. ] No. 1 1:10‐cr‐00046‐SEB‐MJD‐3
]
]
FRANCISCO CALDERON‐ACEVEDO, ]
Defendant‐Appellant. ] Sarah Evans Barker,
] District Court Judge.
O R D E R
In 2010, Drug Enforcement Administration (“DEA”) agents conducted an investiga‐
tion into suspected methamphetamine distribution, including setting up a controlled
purchase of methamphetamine from Francisco Calderon‐Acevedo. That investigation
led to the filing of an eight count indictment, naming Calderon‐Acevedo in four counts:
Count 1—conspiracy to possess with intent to distribute and/or distribute 500 grams or
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13‐1015 2
more of methamphetamine under 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846; Counts 6 &
7—possession with intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(viii); and Count 8—possession of a
firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.
924(c)(1). Calderon‐Acevedo attempted to plead guilty to Counts 1 and 8 in exchange
for an agreed sentence of 180 months pursuant to Federal Rule of Criminal Procedure
11(c), but the district court found that he failed to admit facts sufficient to support a
guilty plea as to Count 8—possession of a firearm during and in relation to a drug
trafficking crime under 18 U.S.C. § 924(c). The court then ordered the case to be set for
trial, and the government withdrew the plea agreement. Calderon‐ Acevedo ultimately
pled guilty to Count 6 and received a sentence of 240 months imprisonment.
Calderon‐Acevedo now appeals the district court’s initial rejection of his plea to
Count 8, possession of a firearm during and in relation to a drug trafficking crime.
Federal Rule of Criminal Procedure 11(b)(3) provides that “[b]efore entering judgment
on a guilty plea, the court must determine that there is a factual basis for the plea.”
United States v. Muratovic, 719 F.3d 809, 812 (7th Cir. 2013). A conviction under
18 U.S.C. 924(c) requires that the defendant committed a drug trafficking crime and
possessed a firearm in furtherance of that crime. (Count 8 improperly used the “during
and in relation to” language instead of the proper “in furtherance of” language, but the
error did not impact the issue before us.) Without dispute, sufficient facts were
admitted that established that Calderon‐Acevedo was involved in a drug trafficking
crime. He brought 109 grams of pure methamphetamine to the controlled buy set up by
the DEA agents and admitted to prior sales of methamphetamine. He also consented to
a search of his residence which yielded 111 grams of methamphetamine that was 99%
pure, packaged in one ounce bundles, and $94,000 in currency.
The problem here centered around whether a firearm was possessed in furtherance
of that crime. A firearm was found in a search of Calderon‐Acevedo’s residence, but
Calderon‐Acevedo repeatedly disavowed that the firearm was possessed in furtherance
of that drug trafficking crime. Therefore, the issue before us is whether the district
court erred in determining that there was not a sufficient basis in the record to establish
that Calderon‐Acevedo’s possession of the firearm was in furtherance of his drug
trafficking. See United States v. Castillo, 406 F.3d 806, 814 (7th Cir. 2005) (mere presence
of a weapon at the scene of a drug crime without more is insufficient; the facts must
illustrate that the firearm was possessed to advance or promote that criminal activity).
We review the district court’s decision to reject the guilty plea only for abuse of
discretion. United States v. Bahena‐Navarro, 678 F.3d 492, 495 (7th Cir. 2012).

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No. 13‐1015 3
In the plea hearing, Special Agent Schmidt testified that a pistol was recovered in the
same storage room as the methamphetamine in the search of Calderon‐Acevedo’s
residence. The district court judge asked Calderon‐Acevedo if he agreed with the
testimony of Schmidt, and he responded that he agreed “with a certain part of it.”
Transcript 7/25/12 at 6. He elaborated that the weapon did not belong to him, and that
“there was no way that it was going to be used to protect any drug operation because it
was hidden underneath three boxes of tools wrapped in plastic and newspaper.” Id. at
9. Defense counsel then opined that it was sufficient that Calderon‐Acevedo was
storing the firearm for his drug supplier, a coconspirator in a drug conspiracy. The
court further explored the matter, asking Calderon‐Acevedo “do you admit that you
possessed that firearm in relation to the drug trafficking crime of possessing or partici‐
pating in the conspiracy to possess the methamphetamine?” Id. at 9‐10. The defendant
stated “I do admit that.” Id. at 10. That is as close as the defendant got to establishing a
basis for the plea, and the focal point for Calderon‐Acevedo’s argument. The court did
not stop there, though. As that bare assertion was at odds with Calderon‐Acevedo’s
earlier statements, the court proceeded to ask him why then he stated that the firearm
could not have been used in connection with a drug trafficking crime because it was
hidden. His response was that he was merely storing it for two days for a person who
had asked him to store it. Id. at 12. His attorney argued that it was sufficient that the
person for whom he was storing it was another drug dealer, but Calderon‐Acevedo
never testified as to those circumstances and provided no basis for the court to conclude
that the storage of the weapon facilitated that relationship and therefore advanced the
drug distribution activity. The district court ultimately rejected the plea because there
was no indication that he was storing it to facilitate his drug trafficking activities or that
the weapon was otherwise used to further that activity.
On appeal, Calderon‐Acevedo points to his affirmative response to the question as
to whether he “possessed the firearm in relation to the drug trafficking crime of
possessing or participating in the conspiracy to possess the methamphetamine.” That
response was an acknowledgment of the criminal charge to which he was pleading
guilty, but what was lacking was the factual basis for the plea. Not only did he fail to
provide that factual basis, he explicitly disavowed it. The criminal offense required a
nexus between the firearm and the drug trafficking, and the defendant repeatedly
emphasized that the firearm could not have been used in connection with the drug
trafficking because of its location and how it was packaged, that he was just storing it
for a couple of days for another person, and that he did not know the reason why that
person had a firearm. With those statements, the defendant made clear that there was
no factual basis for the guilty plea, and the district court properly refused to accept the
plea.
AFFIRMED.

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