     Case: 14-41289   Document: 00513253352        Page: 1   Date Filed: 10/30/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-41289                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 30, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ADRIAN RODRIGUEZ-GUERRERO,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Adrian Rodriguez-Guerrero pled guilty to conspiracy to possess with
intent to distribute 100 kilograms or more of marijuana. He argues that the
district court erred during sentencing by applying a two-level enhancement for
possession of a firearm. We AFFIRM.


                                BACKGROUND
      On September 5, 2012, McAllen, Texas police investigators were
conducting surveillance of a ranch north of the city that was suspected of being
a staging point for narcotics trafficking. The officers observed Rodriguez-
Guerrero as he arrived and then left the ranch with another defendant, Jose
    Case: 14-41289    Document: 00513253352     Page: 2   Date Filed: 10/30/2015



                                 No. 14-41289
de Jesus Gallo-Reyes. Officers followed them to a residence in McAllen. The
two men later left the residence in a truck to return to the ranch. That truck
was followed closely by a van driven by co-defendants Mariano Rodriguez and
Juan Rodriguez. The vehicles appeared weighed down.
      The officers stopped both vehicles. A canine alerted to the presence of
narcotics in the van. A search of the van discovered boxes of limes with bundles
of marijuana concealed among the limes. The suspects consented to a search
of the residence in McAllen. There, officers found articles of clothing in two of
the bedrooms, a loaded shotgun and 125 shotgun shells in the master bedroom,
and two bundles of marijuana in the master bathroom shower. In a room
connected to the garage, the officers found plastic cellophane, limes, packing
tape, white and green fresh lime boxes, latex gloves, a large scale, and several
bundles of marijuana. Wrapping material with marijuana residue was in the
garage.   All of the seized bundles of marijuana were wrapped with a
combination of plastic cellophane and packing tape.
      The owners of the residence were not charged in the case. There was no
information as to who owned the clothing in the residence. In his written
statement accepting responsibility, Rodriguez-Guerrero stated that he was
hired to perform landscaping services at the McAllen residence. He later was
asked to load the marijuana into a truck at the residence. Rodriguez-Guerrero
acknowledged that the residence was a “stash house.”
      Rodriguez-Guerrero pled guilty to conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana. His total offense level of 27
and criminal history category of III yielded a guidelines-range sentence of 87
to 108 months. Included in the calculation was a two-level enhancement for
possession of a dangerous weapon, namely, the shotgun found in the master
bedroom of the McAllen residence.


                                       2
    Case: 14-41289    Document: 00513253352    Page: 3   Date Filed: 10/30/2015



                                No. 14-41289
      Rodriguez-Guerrero objected to the enhancement on the ground that
there was no evidence that he controlled the shotgun or the house where the
shotgun was found. He also denied knowing that the shotgun was present in
the house. There was no evidence that he or his co-conspirators owned, leased,
or resided at the house or had entered the master bedroom. There was also no
evidence that he or any other conspirator had any connection to the shotgun or
usually carried a weapon. The error was not harmless, he argues, because
without the enhancement, his guideline range of imprisonment would have
been 70 to 87 months.
      The district court overruled the objection: “There was nothing else going
on at that location other than the drug trafficking. And the weapon was there
loaded and there were shells found in the same master bedroom.” The court
said it was not finding Rodriguez-Guerrero “actually” or “constructive[ly]”
possessed the shotgun; rather, “it was reasonably foreseeable to [the
defendant] that there would be a weapon involved in relationship to this drug
trafficking crime. And based on the location, then, what was in that place,
there’s nothing to indicate that it was there for anything other than involving
the drug trafficking.” Further, the shotgun was “a tool of the trade and it’s
reasonably foreseeable to him that there would have been a weapon, especially
a person with the experience that he has in drug trafficking.”
      The district court sentenced Rodriguez-Guerrero to 104 months of
imprisonment and four years of supervised release. He timely appealed.


                                DISCUSSION
      Rodriguez-Guerrero contends that the district court erred by applying
the two-level enhancement for possession of the shotgun under United States
Sentencing Guidelines Manual Section 2D1.1(b)(1) because there was no
evidence to support a finding that either he or a coconspirator possessed the
                                      3
    Case: 14-41289     Document: 00513253352       Page: 4   Date Filed: 10/30/2015



                                 No. 14-41289
shotgun. We review de novo any legal questions regarding the applicability of
Section 2D1.1(b)(1). United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010). We review the district court’s factual findings for clear error. United
States v. King, 773 F.3d 48, 52 (5th Cir. 2014).
      Section 2D1.1(b)(1) provides a two-level enhancement of a defendant’s
offense level “[i]f a dangerous weapon (including a firearm) was possessed.”
The enhancement applies “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”               U.S.S.G.
§ 2D1.1(b)(1), cmt. n.11(A). “[T]he government must prove weapon possession
by a preponderance of the evidence.” Zapata-Lara, 615 F.3d at 390. If the
government satisfies this burden, then the burden shifts and the defendant
must show that it is clearly improbable that the weapon was connected to the
offense. Id. at 391 n.5.
      The government can prove that the defendant personally possessed the
weapon “by showing a temporal and spatial relationship of the weapon, the
drug trafficking activity, and the defendant.” Id. at 390. “Alternatively, when
another individual involved in the commission of an offense possessed the
weapon, the government must show that the defendant could have reasonably
foreseen that possession.”    Id. (quotation marks omitted).         A defendant
involved in a “jointly undertaken criminal activity” is responsible for “all
reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). “Thus, a
sentencing court may often infer foreseeability from a coconspirator’s knowing
possession of a weapon.” Zapata-Lara, 615 F.3d at 390 (citation and quotation
marks omitted).
      In this case, the district court applied the enhancement on the basis that
Rodriguez-Guerrero must have reasonably foreseen that another conspirator
would knowingly possess a firearm. The district court did not connect the
                                       4
    Case: 14-41289     Document: 00513253352     Page: 5   Date Filed: 10/30/2015



                                  No. 14-41289
shotgun to any particular conspirator, nor does the record provide such
evidence. Rodriguez-Guerrero’s primary argument is that the failure to link
the shotgun to a specific conspirator precludes the application of the sentencing
enhancement.       For this proposition, Rodriguez-Guerrero relies almost
exclusively on our decision in Zapata-Lara.
      In Zapata-Lara, the defendant brokered a drug deal that took place in
the driveway of the seller’s residence, which was owned by his mother. Id. at
389 & n.1. Law enforcement officers later found a loaded handgun in the
garage inside a small refrigerator that was 15 feet from where the drug deal
took place. Id. The district court applied the Section 2D1.1(b)(1) enhancement
on the grounds that a gun is a “tool of the trade” and it was “clearly established
by precedent” that “a gun would be present” at a drug deal. Id.
      We interpreted the district court’s explanation to “suggest a finding of
foreseeability . . . but the court never connected the handgun to any particular
co-participant.”   Id. at 390.   We stated that the relatively short distance
between the transaction and the weapon might support “spatial connection,”
but the fact that the weapon was not discovered until a subsequent search
made the “temporal connection” uncertain. Id. at 391. We remanded so that
the district court could sentence the defendant again and articulate a rationale
with supporting findings should the same enhancement be applied. Id.
      Unlike Zapata-Lara, the district court here made detailed findings
explaining the necessary connections. We conclude that the facts identified by
the court plausibly establish a temporal and spatial relationship between the
weapon, the drug trafficking activity, and Rodriguez-Guerrero or a
coconspirator. When a district court’s factual findings are plausible in light of
the record as a whole, they will be upheld. King, 773 F.3d at 52.
      First, it is undisputed that the house where the shotgun was found was
a stash house used to package and transport bundles of marijuana. It was a
                                        5
    Case: 14-41289    Document: 00513253352      Page: 6   Date Filed: 10/30/2015



                                 No. 14-41289
drug warehouse, not someone’s residence in which drugs were also stored.
Second, bundles of marijuana were found in the master bedroom bathroom,
making it plausible to find that either Rodriguez-Guerrero or another
conspirator accessed the master bedroom where the shotgun was found. Third,
the amount of ammunition suggests that the weapon belonged to the defendant
or his coconspirators in connection with the drug trade. Fourth, the shotgun
was found on the same day that law enforcement observed Rodriguez-Guerrero
and his coconspirators at the house.
      Though nothing in the record links the shotgun to any particular
conspirator, the evidence makes it plausible that a “weapon was present” and
that one of the conspirators possessed it. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A).
Because the only purpose of the house was for drugs, it was plausible to find
that the only purpose of the weapon was to support the drug business. The
possession of the weapon to further the drug conspiracy may be clear without
there also being clarity as to which conspirator possessed it.
      The sentencing enhancement reflects the “increased danger of violence
when drug traffickers possess weapons.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A).
The mere fact that a weapon cannot be attributed to any specific drug trafficker
does not decrease the danger of violence.       There was enough evidence to
support that the weapon must have been possessed by one of the conspirators
in furtherance of the conspiracy. That is sufficient.
      AFFIRMED.




                                       6
