     Case: 17-41033      Document: 00514675937         Page: 1    Date Filed: 10/10/2018




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

                                    No. 17-41033                              FILED
                                  Summary Calendar                     October 10, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODRIGO ROMAN,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:16-CR-876-9


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Rodrigo Roman appeals the ten-year statutory minimum sentence
imposed after he pleaded guilty to conspiring to possess with the intent to
distribute over five kilograms of cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). He argues that the district court erred in
determining that he possessed a firearm or other dangerous weapon in
connection with his drug offense. This finding resulted in a two-level


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41033

enhancement in Roman’s offense level under U.S.S.G. § 2D1.1(b)(1) and made
him ineligible for a sentence reduction under the safety valve provision,
U.S.S.G. § 5C1.2(a).
      A district court’s factual finding that the dangerous weapons
enhancement applies is reviewed for clear error. United States v. Ruiz, 621
F.3d 390, 396 (5th Cir. 2010). It will be affirmed if “plausible, considering the
record as a whole.” Id. The enhancement applies if a defendant possessed a
“dangerous weapon (including a firearm)” in connection with drug offense
conduct. § 2D1.1(b)(1); United States v. Vasquez, 161 F.3d 909, 912 (5th Cir.
1998). The Government bears the initial burden to demonstrate “a temporal
and spatial relation existed between the weapon, the drug trafficking activity,
and the defendant.” United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005)
(quoting United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001)). The
burden then “shifts to the defendant to show that it was clearly improbable
that the weapon was connected with the offense.” Ruiz, 621 F.3d at 396.
      In making its findings, the district court may rely on the facts set out in
a presentence report (PSR) “if those facts have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting
United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)). Here, the PSR
stated that a search of Roman’s residence resulted in the discovery of over
$48,000 in currency, a money counter, a homemade firearm silencer,
ammunition, and three firearms, including a sawed-off shotgun, a semi-
automatic pistol, and another pistol. Law enforcement officers also discovered
4.72 kilograms of cocaine in a vehicle located on Roman’s property. According
to the PSR, Roman’s role in the offense was that of a narcotics and currency



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                                      No. 17-41033

stash house caretaker and street-level distributor. The PSR thus recommended
sentencing enhancements for possession of a dangerous weapon, U.S.S.G.
§ 2D1.1(b)(1), and for maintaining a premises for the purpose of manufacturing
or distributing a controlled substance, U.S.S.G. § 2D1.1(b)(12).
       Roman objected to the dangerous weapons enhancement and the PSR’s
resulting determination that he was not eligible for a sentence reduction under
the safety valve provision. 1 He did not contest the other factual findings in the
PSR. At sentencing, Roman maintained that there was insufficient evidence
the firearms were connected to drug trafficking because no drugs were found
in the residence itself, the shotgun was inoperable, and the pistols were
unloaded and locked in a safe upstairs. Defense counsel further argued that
one firearm was used for legitimate self-defense in a dangerous neighborhood
and the other two firearms were given to Roman by a co-defendant to hold on
to, but not to keep permanently.
       The district court accepted that Roman may have kept a firearm to
protect himself against gangs but concluded that the firearms were also used
to facilitate drug trafficking, including defending drugs and drug proceeds kept
at the residence. This finding is plausible and well-supported by the record.
That the weapons were not loaded and that one weapon may have been
inoperable is “not dispositive.” United States v. Paulk, 917 F.2d 879, 882 (5th
Cir. 1990). The “mere presence” of a firearm can “heighten the danger inherent
in drug trafficking.” Id.; United States v. Mitchell, 31 F.3d 271, 278 (5th Cir.
1994). Nor does the fact the pistols were locked in a safe make a difference
here. What matters is that the weapons were accessible to Roman. United
States v. Menesses, 962 F.2d 420, 429 (5th Cir. 1992). Accordingly, the district


       1       Roman also argued that he was entitled to a three-point reduction in his
offense level for acceptance of responsibility. The district court awarded this reduction at
sentencing.


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                                No. 17-41033

court did not err in applying the weapons enhancement under U.S.S.G.
§ 2D1.1(b) and correctly found Roman ineligible for a sentence reduction under
the safety valve provision. Ruiz, 621 F.3d at 397; Vasquez, 161 F.3d at 912.
      AFFIRMED.




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