Nunez

MEMORANDUM **

Margarito Nunez was arrested with a gun at the scene of a methamphetamine transaction between his co-defendant and a government informant. He was convicted at trial of conspiracy to possess with intent to distribute and to distribute methamphetamine in violation of 21 U.S.C. § 846 ; possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1); and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924 (c). Nunez now appeals his sentence, arguing that in deciding to impose a sentence above the statutory minimum, the trial judge improperly relied on the characterization of his gun as “cocked and ready to use.”

The officer who testified about how Nunez’s gun was found at the crime scene described it as having its safety on, its hammer cocked to the rear, and a magazine full of ammunition. Although there was no bullet in the gun’s chamber and it was necessary to slide a spring to push a bullet into the chamber prior to firing the gun, the officer testified that the gun could be fired in less than a quarter of a second.

Because Nunez did not raise this issue before the district court, we review the district…