     Case: 16-11000      Document: 00514166809         Page: 1    Date Filed: 09/22/2017




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

                                      No. 16-11000
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 22, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                     Plaintiff - Appellee

v.

ROBERT ROSALES,

                     Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-30-1


Before KING, JONES, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Robert Rosales pled guilty to conspiracy to possess with intent
to distribute 50 grams or more of methamphetamine and received a two-point
enhancement for maintaining a premises for the purpose of manufacturing or
distributing a controlled substance. On appeal, he challenges this two-point
enhancement.        The evidence in the record is sufficient to support the
enhancement. The judgment is AFFIRMED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11000
                                 BACKGROUND
      Robert Rosales pled guilty to one count of conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine in violation of
21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B).     The presentence report (PSR)
assessed a base offense level of 38 for a quantity of 204,170 kilograms of
marijuana equivalent. Among other enhancements, the PSR applied a two
level enhancement for maintaining a premises for the purpose of
manufacturing or distributing a controlled substance. Rosales objected to this
two-level enhancement and the district court overruled his objection.
      Rosales’s total offense level was set at 41. Given his criminal history
category of III, Rosales faced an advisory guidelines range of imprisonment of
360–480 months, as limited by the statutory maximum term of imprisonment.
The district court adopted the PSR and the reasoning set forth in the
Addendum to the PSR. The district court sentenced Rosales to 360 months of
imprisonment followed by four years of supervised release. Rosales timely
appealed.
                                  DISCUSSION
      On appeal, Rosales argues that the district court erred in applying the
two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a
premises for the purpose of manufacturing or distributing a controlled
substance. Rosales does not dispute his control of the premises. He contends,
however, that storing methamphetamine for distribution was not a “primary
use for the premises,” but that his legitimate use of the premises outweighs
the evidence of illicit activity that occurred at the residence. He also argues
that the 85 grams of methamphetamine found in his residence, although a
large amount for an individual, was nonetheless for his personal use because
he was a heavy methamphetamine user.


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                                  No. 16-11000
       The district court’s application of § 2D1.1(b)(12) is a factual finding that
this court reviews for clear error. United States v. Haines, 803 F.3d 713, 744
(5th Cir. 2015). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” United States v. Jeffries, 587 F.3d
690, 692 (5th Cir. 2009) (quotation and citation omitted). Information in the
PSR is “presumed reliable and may be adopted by the district court without
further inquiry if the defendant fails to demonstrate by competent rebuttal
evidence that the information is materially untrue, inaccurate, or unreliable.”
United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal citation
and quotations omitted).
       Section 2D1.1(b)(12) provides a two-level enhancement of a defendant’s
offense level if the defendant “maintained a premises for the purpose of
manufacturing or distributing a controlled substance.” In applying the
enhancement, the Guidelines commentary instructs the court to consider
whether a defendant “held a possessory interest in (e.g. owned or rented) the
premises” and the extent to which he “controlled access to, or activities at, the
premises.” § 2D1.1, comment. (n.17).         “Manufacturing or distributing a
controlled substance need not be the sole purpose for which the premises was
maintained, but must be one of the defendant’s primary or principal uses for
the premises,” not merely the defendant’s “incidental or collateral use for the
premises.” Id. The court considers “how frequently the premises was used by
the defendant for manufacturing or distributing a controlled substance and
how frequently the premises was used by the defendant for lawful purposes.”
Id.
       According to the Addendum to the PSR, agents observed Rosales leave
his rental residence and drive directly to a pre-arranged location to sell 1-
kilogram of methamphetamine. The record further provides that agents found
85 grams of methamphetamine in Rosales’s home and a digital scale in his
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                                  No. 16-11000
kitchen, which suggests that Rosales was using methamphetamine for
distribution purposes. Rosales presented no evidence demonstrating that the
facts contained in the PSR were untrue.        See United States v. Cervantes,
706 F.3d 603, 620-21 (5th Cir. 2013) (noting that the defendant has the burden
to demonstrate that information in the PSR is inaccurate or materially
untrue). In light of this record evidence, it is plausible that the distribution of
methamphetamine was a primary use of Rosales’s residence. See United States
v. Guzman-Reyes, 853 F.3d 260, 265 (5th Cir. 2017). The evidence is sufficient
to support the enhancement. The district court did not clearly err. See Haines,
803 F.3d at 744.
                                   CONCLUSION
      The appellant’s sentence is AFFIRMED.




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