United States of America v. Rafael Pineda Jaramillo, a/k/a Aurelio Garcia Penaloza

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL PINEDA JARAMILLO, a/k/a Aurelio Garcia Penaloza,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00051-NCT-1)
Submitted: July 23, 2015 Decided: September 10, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rafael Pineda Jaramillo appeals from his conviction and
120-month sentence imposed pursuant to his guilty plea to
manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) (2012). On appeal, Jaramillo’s counsel submitted a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether the district court erred in enhancing
Jaramillo’s sentence for possession of firearms in connection
with the offense. Although advised of his right to do so,
Jaramillo has not filed a pro se supplemental brief. The
Government declined to file a brief.* After a thorough review of
the record, we affirm.
Jaramillo argues that the district court erred in applying
the enhancement under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2013), for possession of firearms, asserting
there was insufficient evidence that he possessed the firearms
found in the stash house or that the firearms were connected to
the drug activity for which he was convicted. In assessing a
challenge to the district court’s application of the Guidelines,
we review the district court’s factual findings for clear error
* In addition, the Government has not filed a motion to
dismiss based upon Jaramillo’s appellate waiver in his plea
agreement. We decline to raise the waiver sua sponte.

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and its legal conclusions de novo. United States v. Alvarado
Perez, 609 F.3d 609, 612 (4th Cir. 2010).
Section 2D1.1(b)(1) of the Guidelines directs a district
court to increase a defendant’s offense level by two levels
“[i]f a dangerous weapon (including a firearm) was possessed.”
The enhancement is proper when the weapon at issue “was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th
Cir. 2010) (internal quotation marks omitted), even in the
absence of “proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun.” United States v. Harris, 128
F.3d 850, 852 (4th Cir. 1997) (internal quotation marks
omitted). “[P]roof of constructive possession of the [firearm]
is sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” Manigan, 592 F.3d
at 629. The defendant bears the burden to show that a
connection between his possession of a firearm and his narcotics
offense is “clearly improbable.” Harris, 128 F.3d at 852-53.
Jaramillo has failed to show that the connection between
the firearms and the manufacture of marijuana was “clearly
improbable,” and, on Anders review, “[t]here is nothing in the
record to suggest that the weapons were unconnected to the

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offense.” United States v. Gomez-Jiminez, 750 F.3d 370, 382,
cert. denied, 135 S. Ct. 384 (2014). To the contrary, the record
affirmatively supports the connection: Jaramillo participated in
the cultivation of marijuana at the stash house where he was
arrested, and three loaded and readily-accessible weapons were
found inside the stash house following his arrest. As such, the
court’s factual finding that the weapons were connected to the
drug offense was not clearly erroneous.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. Accordingly,
we affirm Jaramillo’s conviction and sentence. This court
requires that counsel inform Jaramillo, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Jaramillo 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 Jaramillo. We dispense with oral argument because
the facts and legal contentions are adequately expressed in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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