[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              November 8, 2007
                              No. 07-11323                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 03-14024-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GENARO TONY ROSALES,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                            (November 8, 2007)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Genaro Tony Rosales (“Rosales”) appeals his 156-month sentence
for conspiracy to possess with intent to distribute 500 grams or more of a substance

containing methamphetamine.

      In the district court, Rosales pled guilty to conspiracy to possess with intent

to distribute 500 grams or more of a mixture and substance containing

methamphetamine, in violation of 21 U.S.C. § 846, and use of a firearm during and

in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). At

a change-of-plea hearing, the government proffered facts that Rosales made

arrangements with an undercover agent to accept a firearm as partial payment for

methamphetamine. Rosales met the agent, accepted the firearm and $8,000, and

gave the agent one pound of methamphetamine. Rosales agreed that the

government’s proffer of those facts was accurate.

      Subsequently, Rosales filed a 28 U.S.C. § 2255 habeas petition raising

ineffective assistance of counsel claims. A magistrate judge recommended that

Rosales’s § 924(c) conviction and sentence be vacated because, pursuant to United

States v. Montano, 

, 1284 (11th Cir. 2005), Rosales’s barter of drugs

in exchange for a firearm did not constitute “use of a firearm.” The district court

adopted the magistrate judge’s report, vacated Rosales’s sentence, and ordered that

he be resentenced once the probation officer prepared an amended presentence

investigation report (“PSI”).



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      According to the amended PSI, an undercover agent called Rosales about a

deal for a pound of methamphetamine in exchange for $8,000. The agent and

Rosales made an arrangement to exchange a firearm for methamphetamine. At the

meeting, the agent handed the firearm to Rosales. Rosales handed the agent a blue

Wal-Mart bag, and, after the agent inspected the bag’s contents, he handed Rosales

$8,000. Rosales was then arrested without incident. In a subsequent written

statement, Rosales acknowledged that he “accepted a firearm as partial payment

for a portion of the Methamphetamine.”

      The probation officer assigned Rosales a base offense level of 36, pursuant

to U.S.S.G. § 2D1.1(a)(3), and added two levels pursuant to U.S.S.G.

§ 2D1.1(b)(1) because Rosales possessed a dangerous weapon (including a

firearm). Rosales objected to the two-level increase, but the district court

overruled the objection and sentenced Rosales to 156 months imprisonment.

      On appeal, Rosales argues that the district court erred by enhancing his

sentence under U.S.S.G. § 2D1.1(b)(1) because: (1) the undercover agent brought

the firearm to the scene of the crime; (2) the undercover agent was not a

co-conspirator; and (3) Rosales could not have “possessed” the firearm because the

district court had already determined that he did not “carry” the firearm in relation

to his drug offense when it vacated Rosales’s 18 U.S.C. § 924(c) conviction.



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Rosales contends that the court, in finding that Rosales possessed the firearm,

engaged in prohibited fact-finding which violated his Sixth Amendment rights

because the court’s finding that he did not “carry” a firearm for § 924(c) purposes

precluded any further finding that Rosales “possessed” a firearm.

      We review “the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

for clear error, and the application of the Sentencing Guidelines to those facts

de novo.” United States v. Gallo, 

, 1280 (11th Cir. 1999).

“Possession of a firearm for sentencing purposes is a factual finding.” United

States v. Geffrard, 

, 452 (11th Cir. 1996).

      Pursuant to § 2D1.1(b)(1), a defendant’s offense level should be increased

by two levels “[i]f a dangerous weapon (including a firearm) was possessed.”

U.S.S.G. § 2D1.1(b)(1). Application Note 3 of the provision provides:

      The adjustment should be applied if the weapon was present, unless it
      is clearly improbable that the weapon was connected with the offense.
      For example, the enhancement would not be applied if the defendant,
      arrested at his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1, comment. (n.3). “The government has the burden under

§ 2D1.1 to demonstrate the proximity of the firearm to the site of the charged

offense by a preponderance of the evidence.” United States v. Audain, 

, 1289 (11th Cir. 2001). The government need not prove that the firearm was

used to facilitate the distribution of drugs. Id.; see also United States v. Hall, 46

                                            

, 63-64 (11th Cir. 1995) (holding that, under the plain language of

§ 2D1.1(b)(1), the government is only required to prove that the firearm was

present during the drug-trafficking offense). “If the government is successful, the

evidentiary burden shifts to the defendant to demonstrate that a connection

between the weapon and the offense was ‘clearly improbable.’” 

(citation omitted).

      In United States v. Shelton, we held that, because the defendant admitted to

the facts that the district court relied upon to enhance the sentence, the defendant’s

Sixth Amendment rights were not violated. 

, 1330 (11th Cir. 2005).

Further, because the defendant failed to raise objections to the PSI’s factual

statements, we found that the statements were deemed admitted as true. 

initial matter, Rosales’s argument that the district court engaged in

prohibited fact-finding is without merit. The record reflects that Rosales admitted

several times that he possessed the firearm, and, therefore, Rosales’s Sixth

Amendment rights were not violated.

      Rosales’s argument that the firearm enhancement is inapplicable because the

district court already determined that he did not “use” or “carry” a firearm when it

vacated his sentence and conviction under § 924(c) is also without merit. The

government was only required to demonstrate that the firearm was present during



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the drug transaction, which Rosales established by his own admissions. Rosales

failed to show that a connection between the weapon and the offense was clearly

improbable, and his reliance on cases which discuss vicarious liability is

inapposite. Thus, we conclude from the record that the district court did not clearly

err by its application of § 2D1.1(b)(1).

      Based upon the foregoing discussion and our review of the record and the

parties’ briefs, we conclude that the district court did not engage in prohibited fact-

finding, nor did it clearly err in its application of the § 2D1.1(b)(1) firearm

enhancement. Accordingly, we affirm Rosales’s sentence.

      AFFIRMED.




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