United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3650
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Arkansas.
*
Jorge Hernandez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 17, 2011
Filed: October 24, 2011
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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
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PER CURIAM.
Jorge Hernandez pled guilty to conspiracy to distribute methamphetamine in
violation of 21 U.S.C. § 846. The district court imposed a two-level enhancement for1
possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Hernandez appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The Honorable Jimm Larry Hendren, Chief United States District Judge for1
the Western District of Arkansas.

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This court reviews the district court’s factual findings in support of a sentencing
enhancement for clear error. United States v. Brewer, 624 F.3d 900, 907 (8th Cir.
2010). A district court may give a two-level enhancement if it finds by a
preponderance of the evidence that the defendant possessed or used a weapon during
the commission of an offense. United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir.
2000). The firearm enhancement “should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1(b)(1) cmt. n. 3. See United States v. Anderson, 618 F.3d 873, 880 (8th Cir.
2010). A firearm is connected with an offense if there is a temporal and spatial nexus
between the firearm, the drug-trafficking activity, and the defendant. United States
v. Torres, 409 F.3d 1000, 1003 (8th Cir. 2005). The government need not show that
the defendant used or even touched a weapon to prove a connection between the
weapon and the offense. Id., citing United States v. Bost, 968 F.2d 729, 731-32 (8th
Cir. 1992).
Hernandez does not dispute he possessed a firearm, but says it was clearly
improbable the gun was connected to his offense. He contends it was separate from
his drug activity because it was unloaded, wrapped in a bandana and electrical tape,
and hidden in the attic above his garage. Hernandez initially told officers he did not
know about the gun in his attic, but later stated it was his and he kept it in the attic
wrapped up to keep the police from finding it. Hernandez testified differently at
sentencing — that he got the firearm to protect his family.
A district court’s assessment of credibility is virtually unreviewable on appeal.
United States v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010). The district court did not
credit Hernandez’s testimony and reasonably believed he hid the firearm in his attic
to prevent discovery by police. It was undisputed that Hernandez lived at the house,
where he twice sold meth and the illegal drugs and firearm were located. The
temporal and spatial nexus is met. Because it was not clearly improbable that the
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firearm was connected with the offense, the district court did not clearly err in
imposing the enhancement.
The judgment is affirmed.
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