     Case: 12-40317       Document: 00512326199         Page: 1     Date Filed: 07/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 30, 2013

                                       No. 12-40317                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ABDON REQUEJO, JR.,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             D. Ct. No. 7:10-CR-1103-3


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Abdon Requejo, Jr., pleaded guilty to conspiring to
possess with intent to distribute more than 100 but less than 1000 kilograms of
marijuana. The district court sentenced Requejo to 108 months’ imprisonment
after imposing a two-level enhancement for possession of a dangerous weapon
under § 2.D1.1(b)(1) of the U.S. Sentencing Guidelines. On appeal, Requejo
argues that the district court clearly erred in finding that the dangerous weapon
enhancement applied. We affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-40317

      Requejo’s presentence investigation report (PSR) recommended that the
district court impose the two-level enhancement based on the fact that one of
Requejo’s co-conspirators, Nelson Juan Resendez-Requejo (“Nelson Resendez”),
threw a handgun out of the truck he was driving while being pursued by police
before his arrest. Requejo objected to the enhancement. The district court
overruled Requejo’s objection; adopted the factual findings of the PSR; granted
Requejo a one-level reduction under Sentencing Guidelines § 3E1.1(b) for
acceptance of responsibility; and concluded that his guidelines range was 108 to
135 months of imprisonment. The district court selected a sentence at the
bottom of that range, 108 months imprisonment, and ordered four years of
supervised release. Requejo timely appealed.
      “Section 2d1.1(b)(1) of the Guidelines allows for a two-level sentence
enhancement ‘[i]f a dangerous weapon (including a firearm) was possessed’
during certain drug offenses.” United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). The relevant application note of the guidelines commentary
provides:
      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 cmt. 11(A); see United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010). “Before a sentencing court can apply § 2D1.1(b)(1), the government
must prove weapon possession by a preponderance of the evidence. It can do
that in two ways.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010) (citation omitted).
      First, it can prove that the defendant personally possessed the
      weapon, by showing a temporal and spatial relationship of the


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                                   No. 12-40317

      weapon, the drug trafficking activity, and the defendant. To make
      that showing, the government must provide evidence that the
      weapon was found in the same location where drugs or drug
      paraphernalia are stored or where part of the transaction occurred.
      “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. (citations omitted) (quoting United States v. Hooten, 942 F.2d 878, 882 (5th
Cir. 1991)).
      The alternative “foreseeability” standard “derives from U.S.S.G.
§ 1B1.3(a)(1), which renders a defendant accountable for any foreseeable act by
a codefendant taken ‘in furtherance of the execution of [a] jointly undertaken
criminal activity.’ The sentencing court may infer foreseeability from the
coparticipant’s knowing possession of the weapon. Other circumstances may
also give rise to an inference of foreseeability.” Hooten, 942 F.2d at 882 (internal
citations omitted). We have long held that a large “amount of drugs . . .
delivered and [high] street value increase the likelihood — and thus
foreseeability — that those involved in the conspiracy will have dangerous
weapons.”      Cisneros-Gutierrez, 517 F.3d at 766; see also United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990) (stating that because
“firearms are tools of the trade of those engaged in illegal drug activities[,] . . .
[s]entencing courts[] . . . may ordinarily infer that a defendant should have
foreseen a co-defendant’s possession of a dangerous weapon, such as a firearm,
if the government demonstrates that another participant knowingly possessed
the weapon while he and the defendant committed the offense by jointly
engaging in concerted criminal activity involving a quantity of narcotics
sufficient to support an inference of intent to distribute” (internal quotation
marks omitted)). “If the Government meets [its] burden[] [of proving weapon
possession by a preponderance of the evidence], the burden shifts to the



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defendant to show that it was clearly improbable that the weapon was connected
with the offense.” Ruiz, 621 F.3d at 396; see also U.S.S.G. § 2D1.1 cmt. 11(A).
      “The district court’s determination that § 2D1.1(b)(1) applies is a factual
finding reviewed for clear error.” Ruiz, 621 F.3d at 396. “A factual finding is not
clearly erroneous if it is plausible, considering the record as a whole.” Id. “The
district court may rely on the information in a PSR when, as here, the defendant
did not rebut any of the findings contained therein.” Id.
      Requejo’s indictment alleged that he conspired with Nelson Resendez,
Jesus Resendez, Santiago Medina, and Jorge Barrera, all of whom also pleaded
guilty to the marijuana possession and distribution conspiracy. The following
facts were set forth in the PSR and adopted by the district court. On February
9, 2010, agents engaged in surveillance of a warehouse that was rented by Jesus
Resendez. Agents observed a tractor-trailer parked at the warehouse, the
arrival of Jesus Resendez in a Lincoln sedan, and the subsequent arrival of a
Chevrolet pickup truck and a Ford pickup truck. In addition to Jesus Resendez,
Nelson Resendez, Medina, and Requejo were observed at the warehouse. Jesus
Resendez drove the Chevrolet to a Home Depot and returned to the warehouse
after purchasing gloves and filtered masks. All of the co-conspirators were seen
leaving the warehouse at about 6:17 p.m. in either the Lincoln or the Ford.
      The Ford arrived at a residence in McAllen, Texas, at about 7:15 p.m., and
the Lincoln arrived at the residence about 10 minutes later. The Ford departed
the residence after a few minutes and continued to make trips to the warehouse.
At about 8:45 p.m., agents conducted traffic stops on the Lincoln and Ford at
different locations. Jesus Resendez was driving the Lincoln, with Requejo and
Medina as passengers. All three were arrested.
      When agents attempted to stop the Ford, they observed Nelson Resendez
throw a handgun out of the passenger side window. A two-minute pursuit
ensued, during which Nelson Resendez traveled at a high speed and disregarded

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several stop signs in a neighborhood. After his arrest, Nelson Resendez stated
to police that he was hired to load contraband into the tractor-trailer at the
warehouse; he was aware that he was being followed by agents and attempted
to discard the firearm; and he owned the firearm.
      The tractor-trailer departed the warehouse at about 8:16 p.m. and traveled
to a truck stop in Pharr, Texas. Agents made contact with Barrera at the truck
stop and discovered that Barrera had been communicating with Nelson
Resendez through cellular telephones. A search of the tractor-trailer uncovered
97 bundles of marijuana, with a net weight of 967 kilograms, inside the trailer
covered by rotten fruit. Agents who searched the warehouse the next day did not
uncover any additional contraband but did find boxes of mold-covered limes,
bundles of empty cardboard boxes, rubber gloves, and filtered masks.
      The PSR reported that Nelson Resendez appeared to be the most culpable,
was responsible for recruiting Jesus Resendez to rent the warehouse, assisted
in loading the marijuana, and claimed ownership of the firearm. Jesus Resendez
was responsible for renting the warehouse, and Barrera was responsible for
transporting the marijuana in the tractor-trailer. The PSR held Requejo and
Medina responsible for the marijuana based on their presence at the warehouse.
Requejo agreed when he pleaded guilty that he and all the other defendants
admitted to assisting in the loading of the marijuana.
      Applying our precedent to the undisputed facts reported in the PSR and
adopted by the district court, we conclude Requejo has failed to demonstrate
clear error in the district court’s finding that the enhancement applies because
Nelson Resendez’s possession of the handgun was foreseeable to Reqeujo.
Because the PSR indicates that agents observed Nelson Resendez throw the
handgun out of the window of the Ford and that he admitted to owning the gun
and attempting to discard it, there is no question that the government “show[ed]
a temporal and spatial relationship of the weapon, the drug trafficking activity,

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                                        No. 12-40317

and [Nelson Resendez],” see Zapata-Lara, 615 F.3d at 390, and that Nelson
Resendez “knowingly possessed the weapon,” see Aguilera-Zapata, 901 F.2d at
1215. Moreover, the PSR indicates that Requejo had helped his co-conspirators
load 967 kilograms of marijuana into the tractor-trailer.                    These facts are
sufficient to support the district court’s imposition of the enhancement based on
a finding of foreseeability under our precedent. See, e.g., United States v.
Mergerson, 4 F.3d 337, 350 (5th Cir. 1994) (“Ordinarily, one co-conspirator’s use
of a firearm will be foreseeable because firearms are ‘tools of the trade’ in drug
conspiracies.”); see also Cisneros-Gutierrez, 517 F.3d at 766; United States v.
Garza, 118 F.3d 278, 285-86 (5th Cir. 1997); United States v. Sparks, 2 F.3d 574,
587 (5th Cir. 1993); Aguilera-Zapata, 901 F.2d at 1215.1
       For the foregoing reasons, we conclude that the district court’s application
of the two-level enhancement was not clear error. We therefore AFFIRM the
sentence.

       1
          Requejo separately contends that the district court erred by relying in part on
statements by a government attorney at sentencing, which included assertions not reflected
in the PSR. The government attorney asserted that Requejo and the others in the Lincoln
initially believed that they were being followed by thieves, rather than law enforcement, and
had alerted Nelson Resendez to rendezvous with them so as to have the handgun available in
any altercation with the supposed thieves. The basis, if any, for these assertions is unclear.
“This Court has previously held that the unsworn assertions of the Government’s attorney do
not provide, by themselves, a sufficiently reliable basis on which to sentence the defendant.”
United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (citing United States v. Johnson,
823 F.2d 840, 842 (5th Cir. 1987)). Because Requejo did not object to the government’s
statements or the district court’s partial reliance upon them, he must show a plain error “that
affected his substantial rights.” United States v. Garcia-Gonzalez, 714 F.3d 306, 315 (5th Cir.
2013). Significantly, the district court did not base its application of the enhancement on the
attorney’s assertions “by themselves.” Patterson, 962 F.2d at 415; see United States v.
Calverley, 11 F.3d 505, 515 (5th Cir. 1993) (“[Patterson] does not hold that the district court
may not consider the unsworn statements of the prosecutor. Patterson merely holds that such
statements, when they are the only evidence supporting the district court’s finding, are
inadequate to support that finding.” (citing Patterson, 962 F.2d at 415; Johnson, 823 F.2d at
842)). Rather, the district court adopted and relied upon the still-undisputed findings in the
PSR, specifically citing the large quantity of marijuana at issue and this Court’s statements
that firearms often are foreseeable tools of the trade in such large-scale trafficking operations.
Therefore, Requejo has failed to demonstrate plain error in connection with the government
attorney’s statements.

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