NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                   No. 13-2537
                   ___________

         UNITED STATES OF AMERICA

                          v.

                 ANTONIO LEON,
                       Appellant

            _______________________

         On Appeal from the District Court
           for the District of New Jersey
        D.C. Criminal No. 1-10-cr-00729-001
            (Honorable Noel L. Hillman)
                  ______________

   Submitted Pursuant to Third Circuit LAR 34.1(a)
                   April 08, 2014

Before: FISHER, SCIRICA, and COWEN, Circuit Judges

                (Filed: July 1, 2014 )

                _________________

            OPINION OF THE COURT
               _________________




                          1
SCIRICA, Circuit Judge

      Defendant Antonio Leon pleaded guilty to conspiracy to possess with the intent to

distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846. The

District Court sentenced Leon to a prison term of 108 months. Leon challenges his

sentence, in particular the application of a two-level enhancement for possession of a

firearm in connection with the drug trafficking offense. We will affirm.1

                                            I.

      From April to December 2009, Leon participated in a large-scale drug trafficking

organization in Camden County and Atlantic County, New Jersey, with several co-

conspirators, including Rafael Vasquez. Local law enforcement initiated an investigation

of the organization in which an undercover officer posing as a drug dealer approached

Vasquez about securing significant quantities of narcotics. In the following months,

Leon, Vasquez, and other co-conspirators provided and delivered to the undercover

officer crystal methamphetamine, methamphetamine, and cocaine.              In addition to

narcotics, the undercover officer expressed an interest in purchasing firearms. Leon

accompanied Vasquez to a blueberry farm in Hammonton, New Jersey, where they

procured firearms to sell to the undercover officer. A few days later, Vasquez sold the

undercover officer a Yugoslavian M56 automatic assault weapon, an AK-47 assault rifle,

and fourteen rounds of ammunition.

      Leon was arrested on December 3, 2009. After his arrest, Leon admitted to selling

narcotics to the undercover officer and accompanying Vasquez to pick up the firearms.

1
 The District Court had jurisdiction under 18 U.S.C. § 3231. Our jurisdiction is provided
by 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                            2
He was charged in a superseding information with one count of conspiracy to possess

with the intent to distribute 500 grams or more of methamphetamine, in violation of 21

U.S.C. § 846.

       On April 11, 2011, Leon pleaded guilty to the superseding information. Pursuant

to a written plea agreement, Leon admitted responsibility for the possession and

distribution of crystal methamphetamine, methamphetamine, and cocaine. He stipulated

a sentence resulting from an offense level of 29 would be reasonable and waived any

right to challenge such a sentence.2        But the Probation Office concluded in its

Presentence Investigation Report that Leon’s offense level should be 31, due to a two-

level enhancement for possession of a firearm in connection with the drug trafficking

offense under United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) (the

“firearm enhancement”).3

       On May 20, 2013, the District Court sentenced Leon to a prison term of 108

months. The District Court found that the base offense level for Leon’s conviction was

34 and reduced his offense level by two points for application of a safety valve provision

under U.S.S.G. § 5C1.2 and three points for acceptance of responsibility under U.S.S.G.

§ 3E1.1.      It then applied the two-level firearm enhancement under U.S.S.G.

§ 2D1.1(b)(1). As a result, Leon’s total offense level was 31. With a criminal history

category of I, Leon’s resulting Guidelines range was 108 to 135 months, and the District

Court sentenced Leon to the lowest end of that range.

2
  The Guidelines range for a total offense level of 29 with a criminal history category of I,
for which Leon qualified, is 87 to 108 months.
3
  The Guidelines range for a total offense level of 31 with a criminal history category of I
is 108 to 135 months.
                                              3
      At sentencing Leon objected to the application of the firearm enhancement,

contending he had no involvement in the possession of firearms. 4 The District Court

rejected his argument, finding the sale of firearms was part and parcel of the conspiracy.

Because Leon accompanied Vasquez to pick up the firearms and the co-conspirators

discussed the sale of firearms, the District Court concluded that possession of firearms

was a reasonably foreseeable act in furtherance of the conspiracy and thus qualified as

relevant conduct in determining whether to apply the firearm enhancement. It further

stated that even if the firearm enhancement did not apply and Vasquez’s resulting offense

level was 29, it would nonetheless impose a sentence of 108 months. This timely appeal

followed.

                                           II.

      Leon contends the District Court erred by applying the two-level firearm

enhancement under U.S.S.G. § 2D1.1(b)(1). He characterizes Vasquez’s sale of firearms

as a side venture wholly separate from the drug transactions and claims he had no

knowledge of them. Accordingly, Leon believes the firearm enhancement should not

have applied.

      Section 2D1.1 is the Guideline applicable to a drug trafficking offense under 21

U.S.C. § 846. It calls for a two-level enhancement to the base offense level “[i]f a

dangerous weapon (including a firearm) was possessed.”          U.S.S.G. § 2D1.1(b)(1).

Further, U.S.S.G. § 1B1.3 directs a court to consider “relevant conduct”—that is, certain


4
 Because the plea agreement did not contemplate application of the firearm enhancement
and barred the parties from seeking additional Guidelines adjustments, the Government
objected to the firearm enhancement and offered no argument regarding its application.
                                           4
conduct beyond the offense of conviction—when determining whether enhancements

based on specific offense characteristics apply. Section 1B1.3 defines relevant conduct,

“in the case of a jointly undertaken criminal activity,” as “all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertaken criminal activity,” so

long as those acts or omissions “occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(B). On this basis,

the District Court found the firearm enhancement applied.

         Although we likely see no error, we need not determine whether the District Court

properly applied the firearm enhancement because even if the court erred, the error was

harmless. A sentencing error is harmless where the record “show[s] that the sentencing

judge would have imposed the same sentence under a correct Guidelines range, that is,

that the sentencing Guidelines range did not affect the sentence actually imposed.”

United States v. Langford, 

, 216 (3d Cir. 2008). A court’s rationale for

imposing the same sentence must be adequately explained—“a bare statement devoid of

any justification” is not enough. United States v. Smalley, 

, 215 (3d Cir.

2008).

         It is clear from the record the District Court would have imposed a sentence of 108

months of imprisonment even if the firearm enhancement did not apply.                 After

calculating Leon’s Guidelines range with the firearm enhancement, the District Court

considered the factors in 18 U.S.C. § 3553(a), paying particular attention to the sheer

scope of the conspiracy, the large quantities of drugs distributed, the sale of dangerous

                                              5
weapons, and the need to protect the public and impose a sentence that afforded adequate

deterrence. It concluded that the § 3553(a) factors weighed in favor of a sentence of 108

months of imprisonment, adding it would “impose this same sentence of 108 months

even if [it] did not apply the [firearm enhancement].” App. 97. Because a sentence of

108 months “furthers the statutory goals” of 18 U.S.C. § 3553(a), the court emphasized it

would “exercise [its] full sentencing discretion to impose a sentence of 108 months,

whether it’s a [total offense level of] 29 or 31.” 

       Given the District Court’s detailed explanation for imposing a prison term of 108

months regardless of whether Leon’s total offense level was 29 or 31, 5 any error in

applying the firearm enhancement was harmless.

                                             III.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.




5
  The Government and Leon acknowledged at sentencing that a sentence of 108 months
overlapped with both potential Guidelines ranges. We have held that such overlap is not
determinative of whether a sentencing error was harmless, but “may be helpful” to the
analysis. 

. Here, the District Court provided sufficient
justification for its alternative sentence, and we do not rely on the overlap in our analysis.
                                                6