     Case: 15-11080      Document: 00513578262         Page: 1    Date Filed: 07/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-11080
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 5, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JONATHAN BERNARD SMITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-148-1


Before JOLLY, WIENER, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Jonathan Bernard Smith appeals his sentence for
conspiracy to possess with intent to distribute a controlled substance. He
complains that the district court erred when it increased his offense level by
two levels pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a drug-related
premises. Our review is for clear error. See United States v. Trujillo, 502 F.3d
353, 356 (5th Cir. 2007).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-11080    Document: 00513578262    Page: 2   Date Filed: 07/05/2016


                                No. 15-11080

      Smith contends that the court erred in finding that drug distribution was
one of his primary or principal uses of the premises because he did not have a
possessory interest in the premises or distribute drugs from inside, or control
access to, the home. We need not decide this question because any error was
harmless.
      The district court stated that it would impose the same sentence
regardless of whether it was correct regarding the premises enhancement. The
district court explained that its sentence was based on Smith’s cooperation and
the fact that he intended to engage in violence by robbing an undercover agent
during a drug transaction. The court further explained that the sentence was
appropriate to provide just punishment, to protect the public, and to provide
deterrence. In light of the foregoing, any error was harmless. See United
States v. Gutierrez-Mendez, 752 F.3d 418, 430 (5th Cir. 2014).
      AFFIRMED.




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