Opinion
Argued and Submitted November 3, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Central District of California, Gary A. Feess, J., of conspiracy to possess with intent to distribute cocaine. Defendant appealed. The Court of Appeals held that: (1) evidence supported Sentencing Guidelines enhancement for possession of firearm in connection with drug-trafficking offense, and (2) defendant was ineligible for sentencing under Sentencing Guidelines' safety valve provision.
Affirmed. Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding.
Ronald L. Cheng, Esq., Lisa M. Feldman, Erik M. Silber, Esq., USLA-Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
James M. Crawford, Esq., Orange, CA, for Defendant-Appellant.
Before B. FLETCHER, RYMER, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Melecio Martinez Zambada appeals his sentence following a conviction for conspiracy to possess with intent to distribute cocaine under 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
I
The district court did not clearly err in finding that Zambada possessed a firearm for purposes of U.S. S.G. § 2D1.1(b)(1). His wife said that the weapon in the closet in Zambada's room was his gun, it was the type of firearm that has no benign use, and it was loaded. Thus, Zambada's reliance on United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991), and United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001), is misplaced. Although a weapon does not have to be present when overt acts are committed, see United States v. Stewart, 926 F.2d 899, 902 (9th Cir.1991), some acts in furtherance of the conspiracy took place at Zambada's house, and 193.6 grams of cocaine as well as a scale and substantial cash were found in the same search of Zambada's residence. This was relevant conduct suggesting that Zambada possessed the
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gun in connection with drug trafficking. See United States v. Willard, 919 F.2d 606, 609-10 (9th Cir.1990).
II
For the same reasons, the district court's finding that Zambada was ineligible for the safety valve, U.S. S.G. § 5C1.2(a)(2), is well supported. While the burden and quantum of proof are different from § 2D1.1(b)(1), United States v. Nelson, 222 F.3d 545, 551 (9th Cir.2000), the conduct that makes the safety valve unavailable is the same, United States v. Smith, 175 F.3d 1147, 1149 (9th Cir.1999). Even if the district court's formulation were not perfectly clear, its finding that Zambada was not eligible for relief is not clearly erroneous as he could not possibly show on this record that he did not possess the gun while involved in drug trafficking.
AFFIRMED.