     Case: 14-40205      Document: 00512841035         Page: 1    Date Filed: 11/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40205
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 18, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JESUS ANAYA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-797-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jesus Anaya appeals the within-guidelines sentence imposed by the
district court following his guilty plea conviction for maintaining a drug stash
house in violation of 21 U.S.C. § 856(a)(2). He argues that the district court
clearly erred in finding that a base offense level reduction under U.S.S.G.
§ 2D1.8(a)(2) was not applicable in his case because he possessed a firearm
that was found at the stash house. In connection with that argument, he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40205

contends that the district court conflated the provisions of U.S.S.G
§ 2D1.1(b)(1), which enhance a defendant’s drug offense level if a “weapon was
present, unless it is clearly improbable that the weapon was connected with
the [drug] offense,” § 2D1.1 comment. (n.11), with the provisions of
§ 2D1.8(a)(2), which apply a base offense level reduction to an offense of renting
or managing a drug establishment if the defendant had no participation in the
underlying drug offense unless, among other things, the defendant “possessed
a weapon in connection with the offense,” § 2D1.8 comment. (n.1.). He contends
that possession under § 2D1.8 requires actual possession. He argues that, if
his base offense level had been correctly calculated, the recommended
guidelines range would have been lower and that his sentence is therefore
procedurally and substantively unreasonable.
      The Sentencing Guidelines are advisory only, yet the district court must
still properly calculate the advisory guidelines range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). For issues
preserved in the district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. See United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). If there is no procedural error or
such error is harmless, we will consider the substantive reasonableness of the
sentence imposed for an abuse of discretion. Gall v. United States, 552 U.S.
38, 51 (2007).
      Because Anaya challenged the district court’s finding that he possessed
the weapon in the stash house at sentencing, we review that finding for clear
error. However, because Anaya did not raise the issue of whether possession
under § 2D1.8 requires actual possession in the district court or challenge the
substantive reasonableness of the sentence after it was imposed, our review of
those issues is for plain error. See United States v. Peltier, 505 F.3d 389, 391



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                                  No. 14-40205

(5th Cir. 2007); see also United States v. Hernandez-Martinez, 485 F.3d 270,
272-73 (5th Cir. 2007). Under that standard, Anaya must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. Id.
      We have not previously addressed whether possession under the
commentary to § 2D1.8 is defined differently from that of possession under the
commentary to § 2D1.1. Given the lack of any precedent from this circuit, any
error by the district court in applying the standard for possession under the
commentary to § 2D1.1 was not clear or obvious. See United States v. Trejo,
610 F.3d 308, 319 (5th Cir. 2010). Moreover, even if we concluded that Anaya’s
legal argument demonstrates clear or obvious error, it did not affect his
substantial rights because the commentary to § 2D1.8(a)(2) provides several
other circumstances under which the base offense level reduction would not
apply, including when the defendant has previously allowed a premises to be
used as a drug establishment.        Anaya did not dispute the information
contained in the presentence report (PSR) indicating that he previously used
another residence to store drugs. See United States v. Ollison, 555 F.3d 152,
164 (5th Cir. 2009).
      Notably, Anaya does not contest the enhancement of his base offense
level for possessing a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Thus,
he appears to concede that if the district court applied the definition of
possession applicable under the commentary to § 2D1.1 when it found that he
was not entitled to a base offense level reduction under § 2D1.8(a)(2), it did not
clearly err when it found that he possessed the weapon found in the stash
house. In any event, any procedural error in finding that he possessed the



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firearm is harmless because, as noted above, the unrebutted information
provided by the PSR otherwise demonstrates that the base offense level
reduction under § 2D1.8(a)(2) was not applicable in Anaya’s case. See § 2D1.8
comment. (n.1); Ollison, 555 F.3d at 164. Accordingly, there is no reversible
error with respect to the procedural reasonableness of Anaya’s sentence.
      Finally,   Anaya’s   conclusional   assertion   that   his   sentence   of
imprisonment is substantively unreasonable does not suffice to rebut the
presumption of reasonableness that attaches to his within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The judgment of
the district court is AFFIRMED.




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