PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee, v.
JOSEPH BARRERA,
Defendant - Appellant. No. 25-8049
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Appeal from the United States District Court for the District of Wyoming
(D.C. No. 2:25-CR-00080-KHR-1)
_________________________________ Amy W. Senia, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender and Matthew K. Belcher, Interim Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant - Appellant.
Christyne M. Martens, Assistant United States Attorney (Darin D. Smith, United States Attorney and Mackenzie R. Morrison, Assistant United States Attorney, on the brief), Office of the United States Attorney, Casper, Wyoming, for Plaintiff - Appellee.
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Before HARTZ, MATHESON, and FEDERICO, Circuit Judges.
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FEDERICO, Circuit Judge. _________________________________
FILED
United States Court of Appeals Tenth Circuit
October 27, 2026
Christopher M. Wolpert Clerk of Court
Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 1
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Joseph Barrera was arrested in Laramie, Wyoming for possession of and conspiracy to distribute methamphetamine. When officers arrested Barrera, they found a baseball bat, a police-style baton, and drug paraphernalia in his car. Barrera admitted that he had recently used the bat and baton to retake his car after it was stolen with meth stored inside it. Based on these facts, the district court applied a two-level sentence enhancement under § 2D1.1(b)(1) of the Sentencing Guidelines for possession of a dangerous weapon.
This case asks whether that enhancement was properly applied. We hold that it was because Barrera failed to show that a connection between the weapons and his drug activity was "clearly improbable." Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I
In December 2024, Wyoming police opened an investigation into Barrera on suspicion that he was distributing meth. On December 11, police attempted to purchase meth from Barrera through an informant. Barrera told the informant that he had no meth because his car had been stolen with his supply inside.
On December 13, Barrera retook his stolen car by force. According to a Government witness who reviewed footage of the incident, Barrera and other individuals lured the car thief to a predetermined location, where Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 2
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Barrera approached the thief "in an aggressive manner" while holding a baseball bat and baton. R. III at 21. Barrera concedes that he brandished a bat and had a baton tucked into his pants when he retook the car. Although there was meth in the car when it was stolen from Barrera, there was no evidence that there was meth in the car when Barrera retook it. However, there was some evidence in the record that Barrera believed there was meth in the car and "had hopes of getting back [his] methamphetamine" from the car when he retook it. R. II at 66. Barrera did not object to the inclusion of this evidence, though he did solicit testimony from a Government witness who agreed that Barrera "would have no way of knowing or thinking . . . that methamphetamine would still be in the car"
when he retook it. R. III at 25.
Five days after Barrera retook his car, on December 18, police learned through a ping warrant that Barrera's cellphone was in Greeley, Colorado. Suspecting that Barrera was in Colorado to purchase meth, police enlisted federal agents to help monitor Barrera. Agents observed what appeared to be a drug deal taking place in Barrera's car.
Assuming Barrera was now in possession of meth, police tracked Barrera's location to Laramie, Wyoming, where they attempted to conduct a traffic stop. But as they attempted the stop, Barrera sped off in his car, crashed, and fled on foot. Officers conducted a search for Barrera and found Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 3
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him in a nearby shed. Just outside the shed, officers found a bag of meth in a wooden crate.
Officers also searched Barrera's car. In the car, they found a baseball bat and baton, a t-shirt, a scale, and "miscellaneous [drug] paraphernalia."
R. III at 18. Barrera concedes that the bat and baton in his car were the same ones that he used to retake his car on December 13. The t-shirt appears to be the one that Barrera was wearing when he retook the car. Barrera was charged with, and pled guilty to, one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B), and one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The conspiracy was alleged to have occurred between December 1 and 18, 2024 - thus including the December 13 retaking incident. The presentence report recommended a two-level sentencing enhancement for possession of dangerous weapons under § 2D1.1(b)(1) of the Guidelines. At sentencing, Barrera objected to the recommended enhancement. The district court heard testimony from one government witness and arguments from both sides, and then it found that the enhancement applied. The court found that the "totality of the facts and circumstances"
suggested that the baseball bat and baton were dangerous weapons, that Barrera had possessed them, and that his possession was related to a drug Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 4
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offense. R. III at 41. In reaching its conclusion, the court specifically considered the fact that baseball bats and batons are not typical weapons for drug trafficking. And the court identified the car retaking as an important factor tying Barrera's possession of the bat and baton to his drug trafficking activities. The court then calculated Barrera's advisory guidelines range to be 151-188 months and thereafter imposed a 151-month sentence.
Barrera appeals the district court's application of the dangerous weapon enhancement under § 2D1.1(b)(1). Barrera's appeal is timely, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II
Section 2D1.1(b)(1) directs courts to increase a defendant's base offense calculation by two levels "[i]f a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). This court uses a burden- shifting framework to determine whether § 2D1.1(b)(1) applies. Under that framework, the government must first show by a preponderance of the evidence that the defendant possessed a dangerous weapon "by showing 'that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.'" United States v. Martinez, 82 F.4th 994, 1001 (10th Cir. 2023) (quoting United States v. Castro-Perez, 749 F.3d 1209, 1211 (10th Cir. 2023)); see id. ("[P]hysical proximity is a touchstone Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 5
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of the § 2D1.1(b)(1) . . . enhancement."). If the government is successful, the burden shifts to the defendant to show "that it is clearly improbable the weapon was connected with the offense." Id. (quoting United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1185 (10th Cir. 2004)). The Guideline commentary further explains:
The enhancement for weapon possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers possess weapons. The enhancement 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 the defendant's residence, had an unloaded hunting rifle in the closet.
U.S.S.G. § 2D1.1, App. Note 11(A).
Barrera does not dispute that his baseball bat and baton were
"dangerous weapons" under § 2D1.1(b)(1). Nor does he contend that the government failed to meet its initial burden of showing temporal and spatial proximity. Rather, the entirety of Barrera's appeal centers on the second step of the above-described test: whether Barrera showed it was "clearly improbable" that the bat and baton were "connected with the offenses."
Barrera argues that the district court erred at the "clearly improbable" step in two ways. First, Barrera argues that the district court mistakenly failed to consider weapon type - more specifically, he argues that a baseball bat and baton are not typical tools of the drug trade, and the Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 6
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court failed to take proper account of that fact. Second, Barrera argues that the court erred by concluding that he failed to show clear improbability.
A
We review factual findings under § 2D1.1(b)(1) for clear error and legal questions de novo. United States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001). We give "due deference" to the district court's application of the guidelines to the facts. Id.; United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003). "A finding is 'clearly erroneous' when although there is evidence to support it, [this court] on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Pompey,
264 F.3d at 1178 (quoting United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000)).
B
We begin with Barrera's first argument, that the district court erred by declining to consider weapon type at the "clearly improbable" stage. Barrera contends that weapon type is an important factor in the court's § 2D1.1(b)(1) analysis when the weapons at issue are "not typical for drug dealers to carry."
Op. Br. at 11 (citing R. III at 37). And he argues that the district court erred by only considering weapon type when deciding whether his weapons were
"dangerous" but not when considering whether there was any connection between the weapons and the offense. To support his contention, Barrera Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 7
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repeatedly points to the district court's alleged claim that weapon type "does not matter" at the clearly improbable stage.
Barrera's argument fails because he misinterprets the court's findings. The court did not hold that weapon type "does not matter." Rather, it considered the fact that Barrera's bat and baton were "not typical for drug dealers to carry" and held that this fact could not outweigh the "totality of Mr. Barerra's activities" supporting application of the dangerous weapon enhancement. R. III at 37-38. In other words, Barrera's specific weapon type arguments "d[id] not matter" in the sense that they could not prevent application of the enhancement. See id. at 37. In reaching its conclusion, the court cited several cases in which weapon type was important to the § 2D1.1(b)(1) analysis, including cases where courts applied the dangerous weapon enhancement to "a padlocked bandana, a 14-inch machete . . . and a small knife." Id. at 37-38.
While the court considered weapon type primarily at the "dangerous weapon" prong of its inquiry, that inquiry also informed its conclusion at the
"clearly improbable" stage. When the court considered whether Barrera had met his burden of showing clear improbability, it weighed the fact that Barrera's weapons might have had "two, or dual, purposes." R. III at 41. This was a reference to Burling, a case the court cited earlier in its analysis, which held that application of the dangerous weapon enhancement was appropriate Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 8
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even though the defendant's weapon, a machete, "serve[d] a dual purpose" as a weapon and a harvesting tool. United States v. Burling, 420 F.3d 745, 750 (8th Cir. 2005). The district court also repeatedly stated that it was reaching its conclusion on clear improbability based on the "totality of the facts and circumstances." R. III at 41.
Given the record, we decline to hold that the district court failed to consider weapon type at the "clearly improbable" stage of its analysis. But even if the district court had failed to consider weapon type, it would be difficult to say categorically that such a failure was error without weighing the facts in their totality.
True, weapon type can be a highly important factor to the "clearly improbable" inquiry. The commentary to the Guidelines suggests as much when it declares that the dangerous weapon enhancement should not apply to "an unloaded hunting rifle" found in the defendant's closet. U.S.S.G. § 2D1.1, App. Note 11(A). In that example, the application of the enhancement would presumably be inappropriate, in part, because the gun's quality as a "hunting rifle" suggests a legitimate, non-drug-related purpose. Accord United States v. Garner, 940 F.2d 172, 175-76 (6th Cir. 1991) (holding that defendant's antique, single-shot Derringer was "like the hunting rifle in the [§ 2D1.1] hypothetical," in part, because evidence Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 9
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suggested it was a "collector's piece").1Nonbinding caselaw from this circuit and other circuits supports this conclusion. See, e.g., United States v. Napolitan, 762 F.3d 297, 308 (3d Cir. 2014) (describing "the type of gun involved" as one of the elements of the Third Circuit's "clearly improbable"
analysis); United States v. Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002) (same); United States v. Roybal, 188 F. Supp. 3d 1163, 1208-09 (D.N.M. 2016) (noting the importance of weapon type in Tenth and Sixth Circuit caselaw).
Our reasoning that weapon type can be relevant to the "clearly improbable" analysis is not the same as a holding that failure to consider weapon type is per se error. Courts take a totality-of-the-facts approach to dangerous weapon enhancements under § 2D1.1(b)(1). See, e.g., Drozdowski,
313 F.3d at 823 (considering the types of weapons, whether they were loaded or otherwise readily useable, whether they were stored near the drug paraphernalia, and whether they were accessible); United States v. Zimmer,
14 F.3d 286, 291 (6th Cir. 1994) (considering the nature of the drug dealing operation, the setting in which the weapons were found, the location of the contraband relative to the weapons, and defendant's non-drug-related
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explanation for the existence of the weapons). This fact-specific approach makes it hard to say that a failure to consider any one factor constitutes reversible error or that any set of predetermined considerations will always satisfy the test. This may be why Barrera fails to cite a single case in which a court of appeals has reversed for failure to consider weapon type alone. Thus, we hold that the district court did properly consider weapon type at the "clearly improbable" stage. And even if it had not, that alleged insufficiency must be evaluated in light of all the relevant facts and circumstances, and not in isolation.
C
Barrera next argues that the district court erred in its conclusion that he failed to show clear improbability. Again, once the Government demonstrates that a defendant has "possessed" dangerous weapons under § 2D1.1(b)(1), the defendant bears the burden of showing that it is "clearly improbable the weapon was connected with the offense." Martinez, 82 F.4th at 1001 (quoting Zavalza-Rodriguez, 379 F.3d at 1185). One way a defendant can attempt to meet this burden is by providing a well-supported alternative explanation for his possession of the weapon or weapons at issue. Several cases illustrate this point. In United States v. Zimmer, the Sixth Circuit reversed application of the dangerous weapon enhancement when the defendant had shown "by unrefuted testimony" that he used two of his rifles Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 11
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for hunting and that he was in the process of repairing the third for a friend.
14 F.3d at 290-91. Likewise, in United States v. Roybal, the United States District Court for the District of New Mexico looked to our precedent and to Zimmer when it held that the dangerous weapon enhancement did not apply to a defendant who had raised compelling evidence that one of his guns was intended as a gift for his daughter and the others were used for hunting. 188 F. Supp. 3d at 1209.
The alternative explanation offered by a defendant must be well- supported, and it must typically outweigh any explanation tending to connect the weapons to the drug-related activity. In Zimmer, the defendant's claim that he used two of his guns for hunting "was clearly supported by the fact that [the defendant] had killed a deer from the bathroom window on the day before the search." 14 F.3d at 291. And his claim that he was repairing the other gun for a friend was supported by the facts that the gun was disassembled and inoperable when the police found it and that there was no ammunition for the gun in his home. Id. Likewise, in Roybal the defendant's alternative explanations were supported by the defendant's testimony, the existence of scopes on two of the guns, and the fact that one of the guns was wrapped in a box - suggesting that it was intended as a present. 188 F. Supp. 3d at 1208-
09.
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By comparison, in our unpublished decision in United States v. Krolopp, we held that the defendant had failed to show clear improbability when he claimed that his "nearly 100 year[] old" shotgun was a collectible, but the evidence did not support his claim. 427 F. App'x. 639, 642-43 (10th Cir. 2011).2 In that case, we specifically noted that the defendant's shotgun "was functional," "had little value as a collector's item," was hidden in a way that suggested an intention for quick employment, and had a stock that was
"wrapped in electrical tape suggesting a utilitarian rather than a decorative function." Id.
We reemphasize that our approach to the application of § 2D1.1(b)(1) is holistic. While a non-drug-related explanation can certainly help to show that a weapon is not connected to drug activity, courts should consider such explanations in light of all case-specific factors. See, e.g., Zimmer, 14 F.3d at 291.
Barrera offers the retaking of his car as an alternative explanation for his possession of the bat and baton. But his explanation is unavailing. The car retaking strengthens the very connection to drug activity that Barrera must sever. His use of the bat and baton to threaten the car thief demonstrates a propensity to use those weapons for violence - the central
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concern of § 2D1.1(b)(1). See U.S.S.G. § 2D1.1, App. Note 11(A) ("The enhancement for weapon possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers possess weapons."); United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir. 2002) ("Enhancement under § 2D1.1(b)(1) is 'designed to reflect the increased danger of violence when drug traffickers add firearms to the mix.'" (quoting United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998)).
And the fact that the retaking happened just five days before Barrera's arrest strengthens the connection between those events. Importantly, the record suggests that the violence threatened was directly related to Barrera's drug activities. Barrera concedes in his opening brief that "every proven or alleged drug transaction in this case involved Mr. Barrera trafficking while inside of his car." Op. Br. at 26. There was meth in Barrera's car when it was stolen, and there is evidence that Barrera believed there was meth in the car when he retook it. Barrera's car was as important to his drug operations as a gear is to a motor. When his bat and baton got too close to that gear, they were caught in its teeth and subsumed in its machinery.
Had Barrera's explanation not implicated his drug activities, this would be an easier case. If Barrera had been in a softball league, for example, a connection between his bat and drug activities may have been clearly improbable. If Barrera used the baton for his employment as a security guard, Appellate Case: 25-8049 Document: 49-1 Date Filed: 10/27/2026 Page: 14
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the connection could again have been adequately explained. But where, as here, the defendant's dangerous weapons were found alongside his drug paraphernalia, and his only explanation suggests the use of violence closely related to his drug activities, we cannot hold that the district court's application of § 2D1.1(b)(1) was in error.
None of Barrera's other arguments upend this conclusion. Barrera's argument that the district court's decision was based "on proximity to drugs alone" is without merit because the court based its conclusion on several factors unrelated to proximity, including, notably, the car retaking. Op. Br. at 17. Likewise, the other factors to which Barrera directs our attention do not change our conclusion. Barrera may be correct that atypical weapon type, inaccessibility during drug activities, and distance between place-of-storage and drug paraphernalia all weaken the link between his weapons and the drug activity. See Napolitan, 762 F.3d at 308 (weapon type important to "clearly improbable" analysis); Burling, 420 F.3d at 750 (accessibility important); Zimmer, 14 F.3d at 291 (storage location important). But these factors cannot sever the connection established by the car retaking five days prior to his arrest.
For the foregoing reasons, we hold that the district court did not err in applying a two-level sentence enhancement under § 2D1.1(b)(1).
AFFIRMED.
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