United States of America v. Joaquin Tostado-Barraza

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4591
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOAQUIN TOSTADO-BARRAZA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00056-MOC-6)
Submitted: April 16, 2015 Decided: April 20, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Joaquin Tostado-Barraza pled guilty without a plea
agreement to conspiracy to possess with intent to distribute
cocaine and cocaine base and conspiracy to commit money
laundering. The district court sentenced him to 120 months’
imprisonment. Tostado-Barraza’s counsel has submitted a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but
questioning whether the district court erred when it applied a
two-level enhancement under U.S. Sentencing Guidelines
§ 2D1.1(b)(1) (2013) because a handgun was possessed. Neither
Tostado-Barraza nor the Government has filed a brief. We
affirm.
A two-level increase in a defendant’s offense level is
warranted “[i]f a dangerous weapon (including a firearm) was
possessed.” USSG § 2D1.1(b)(1). The defendant bears the burden
to show that a connection between his possession of a firearm
and his narcotics offense is “clearly improbable.” United
States v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997) (internal
quotation marks omitted). Given that Tostado-Barraza was found
in a “stash” trailer, a gun was found on his bed, and numerous
holes were located directly behind the trailer containing drug
wrapping materials, we conclude that Tostado-Barraza has not met
his burden of establishing that a connection between his

-- 2 of 3 --

3
possession of a firearm and his offense was clearly improbable.
Thus, the district court’s finding was not clearly erroneous.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Tostado-Barraza, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Tostado-Barraza requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Tostado-Barraza.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

-- 3 of 3 --