     Case: 14-10146    Document: 00512858273       Page: 1   Date Filed: 12/04/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-10146                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         December 4, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JAMES HOWARD KING,

             Defendant - Appellant




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


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Defendant-appellant James Howard King (“King”) appeals the two-level
enhancement to his offense level under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (“§ 2D1.1(b)(1)”) for possession of a firearm, arguing that the
enhancement is not supported by the record. He also argues that the district
court failed to resolve his objections to the § 2D1.1(b)(1) enhancement, which
is required by the Due Process Clause of the Constitution and Federal Rule of
Criminal Procedure 32(i)(3)(B) (“Rule 32(i)(3)(B)”). Finally, King appeals the
district court’s failure to apply the so-called “safety valve” provided by 18
U.S.C. § 3553(f), which, if applied, would remove the mandatory minimum
sentence for his offense of conviction. He argues that the district court’s failure
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to apply the safety valve presents a constitutional problem under Alleyne v.
United States, 133 S. Ct. 2151 (2013) because a judge rather than a jury found
the fact that precluded its application (possession of a firearm in connection
with the offense). We AFFIRM.
                 FACTUAL AND PROCEDURAL BACKGROUND
      King pleaded guilty (without a plea agreement) to one count of
conspiracy to possess with intent to distribute a controlled substance, namely,
100 grams or more of a mixture or substance containing a detectable amount
of heroin, in violation of 21 U.S.C. § 846, § 841(a)(1), and § 841(b)(1)(B). The
one-count indictment specified that the conspiracy began in or before January
of 2012 and continued until on or about February 11, 2013. He and his attorney
also signed a factual resume in connection with his guilty plea. It provided
that King acted as a courier on behalf of Darron Copeland in early 2012,
picking up heroin from Dallas, Texas. The factual resume stated that, later in
2012, Copeland replaced King and others with another courier because of
interference by law enforcement. The factual resume also noted that King was
arrested in Fort Worth on July 3, 2012, with approximately 11 ounces of heroin
that he had received from a Dallas-based supplier and intended to deliver to
Copeland. As in the indictment, the factual resume stated that the conspiracy
between King, Copeland, and others lasted from January 2012 until on or
about February 11, 2013.
      King was arrested a second time on February 12, 2013, at a residence on
Fairlane Avenue in Fort Worth. After King pleaded guilty, a Presentence
Investigation Report (“PSR”) was composed by a probation officer in
preparation for King’s sentencing. According to the PSR:
      The information in [the Offense Conduct section of the PSR] was
      obtained during an independent investigation of the offense and
      relevant conduct by this probation officer. The information was
      gleaned from the Criminal Complaints, charging documents, and
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      Factual Résumés filed in this case, as well as investigative
      material prepared and compiled by [Drug Enforcement
      Administration (“DEA”)] agents and [Task Force Officers
      (“TFOs”)] and police officers employed by city police departments.
      In addition, interviews with DEA TFO Derrick Lopez, DEA TFO
      Kent Fluitt, and DEA TFO Steve Groppi were conducted, and they
      clarified and corroborated the information contained in the
      investigative reports. All of the information contained herein is
      based on evidence considered to be reliable by this probation
      officer.
      According to the PSR’s Offense Conduct section, law enforcement seized
numerous items during the search of the Fairlane Avenue residence after
King’s arrest on February 12, 2013. From the master bedroom, they seized a
“loaded and chambered High Point, .45-caliber, semiautomatic handgun” with
an “obliterated” serial number, “one empty box of .45-caliber ammunition,” and
a “plastic baggie containing numerous clear, empty capsules.” Also in the
master bedroom, law enforcement observed “a television monitor” that
“displayed the camera view of four separate cameras mounted on the exterior
of the home.” From a shelf in the laundry room, law enforcement seized 13
capsules stored in a cigarette box that contained between 0.05 and 1 gram of
heroin each. Finally, from the floor next to the backdoor, they seized a plastic
grocery bag with numerous pieces of drug paraphernalia, including “baggies,
capsules, [an] electric grinder, two electronic scales, [a] kitchen strainer, and
empty ‘cut’ bottles.”
      The PSR also stated that Copeland stopped using King as a courier after
King’s first arrest on July 3, 2012. The PSR provided that, thereafter, King
continued his involvement in possessing and distributing heroin, “apart from
coconspirators.” According to the PSR, upon his second arrest on February 12,
2013, he “admitted he was involved in the distribution of drugs” but said that
he “did not have any narcotics or drug paraphernalia at his residence.”


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      Based on the discovery of the handgun during the search of King’s
residence, the PSR recommended a two-level enhancement to his offense level,
based on § 2D1.1(b)(1). King objected to this enhancement, arguing that the
residence where he was arrested was his wife’s, not his own, that “[t]he weapon
was found in a drawer of his wife’s nightstand in the master bedroom and was
not in open view,” and that there was no indication that King knew the weapon
was there. King also argued that the heroin and drug paraphernalia at his
wife’s residence were for his personal use rather than for distribution and that
the PSR indicated that he ceased his involvement in the criminal conspiracy
on July 3, 2012. Consequently, King argued that he qualified for the “safety
valve” because he did not possess a firearm in connection with his offense. As
evidence supporting these objections, King attached his July 3, 2012 arrest
report, which listed an address for him that was not on Fairlane Avenue, and
a printout of a webpage about heroin addiction, which says that heroin users
often possess paraphernalia such as “[s]yringes, small plastic bags, coffee
grinders and scales.”
      An Addendum to the PSR (“PSR Addendum”) responded to King’s
objections. It again asserted that King lived at the Fairlane Avenue address,
given that he was arrested at that residence and told the probation officer he
had lived there for four years. The PSR Addendum also concluded that the
handgun’s proximity to the drug paraphernalia made it probable that the gun
“had a protective function in the context of the defendant’s drug-dealing
activities.” Finally, the PSR Addendum concluded that the presence of the
heroin and paraphernalia at King’s residence demonstrated that he had
continued the “same course of conduct to possess with intent to distribute
heroin” until the date of his second arrest.
      King filed a response to the PSR Addendum. He stopped arguing that
he did not reside at the Fairlane Avenue address. But he continued to argue
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                                  No. 14-10146
that his involvement in the drug conspiracy ended on July 3, 2012, and that
the drugs and paraphernalia found at his residence were related only to his
personal drug use. He argued that any possession of a firearm months after
he stopped participating in the conspiracy was not connected to his offense of
conviction. He also argued that the district court’s application of a firearm
enhancement would subject him to a mandatory minimum sentence by making
the safety valve unavailable, which would violate Alleyne.
      At sentencing, after giving the Government and King the opportunity to
present further evidence and objections, the district court overruled King’s
objections for the reasons set out in the PSR Addendum. Accordingly, the
district court imposed a two-level enhancement to his offense level based on
possession of a firearm during the offense, and it did not apply the safety valve.
It calculated King’s Sentencing Guidelines imprisonment range as 60 to 71
months, and ultimately sentenced him to 60 months of imprisonment, the
mandatory minimum sentence.
                            STANDARD OF REVIEW
      “The district court’s determination that § 2D1.1(b)(1) applies is a factual
finding reviewed for clear error.” United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010) (per curiam). “A factual finding is not clearly erroneous if it is
plausible, considering the record as a whole.” Id. Moreover, “a district court
is permitted to draw reasonable inferences from the facts, and these inferences
are fact-findings reviewed for clear error as well.” United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006).
      Citing United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010), King
argues that we should apply de novo rather than clear error review. In Zapata-
Lara, we held that de novo review applied because the defendant’s argument
did “not concern the specifics of the factfinding, but, rather, whether the facts
found [were] legally sufficient to support the enhancement.” Id. at 390. But
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that case involved a peculiar situation where the district court did not make
any finding at all about whether the defendant personally possessed the
firearm or a coconspirator foreseeably possessed it. See id. at 390-91 (“We
cannot be sure what rationale the court had in mind to support the
enhancement . . . .”). In contrast, here, it is completely clear that the district
court applied the enhancement based on King’s personal possession of the
firearm, rather than a coconspirator’s possession of it. Further, both before
and after we decided Zapata-Lara, we have applied clear-error review when
reviewing the factual basis for a § 2D1.1(b)(1) enhancement. E.g., United
States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001) (decided before Zapata-
Lara); Ruiz, 621 F.3d at 396 (decided after Zapata-Lara). Given the long line
of precedent applying clear-error review to § 2D1.1(b)(1) enhancements and
the easily distinguishable situation in Zapata-Lara, we find that clear-error
review applies here.
      King properly preserved his Alleyne challenge by raising it in his
objections to the PSR Addendum. Thus, we review de novo King’s challenge to
the constitutionality of his sentence. United States v. Doggett, 230 F.3d 160,
165 (5th Cir. 2000).
                                  DISCUSSION
      King challenges the district court’s failure to resolve his objections, the
application of the § 2D1.1(b)(1) enhancement, and the constitutionality of
denying the safety valve based on a judicially-determined fact. All of these
challenges fail.
                                        I.
      Rule 32(i)(3)(B) provides that, at sentencing, a district court must rule
on any objection to the PSR or “determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing.” A district court may fulfill this obligation
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by adopting the PSR. E.g., United States v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999). Here, the district court stated that it was overruling King’s objections
for the reasons stated in the PSR Addendum. Accordingly, the district court
fulfilled its Rule 32(i)(3)(B) obligation to rule on all objections, as well as any
obligation to do so under the Due Process Clause.
                                        II.
      U.S.S.G. § 2D1.1(b)(1) provides that a two-offense-level enhancement
should be applied to a defendant convicted of conspiracy to possess with intent
to distribute a controlled substance “[i]f a dangerous weapon (including a
firearm) was possessed.” For the enhancement to apply, the Government must
first prove by a preponderance of the evidence that the defendant possessed
the firearm. The Government may do so by showing “that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and
the defendant.” Ruiz, 621 F.3d at 396 (internal quotation marks omitted).
“[T]he Government must show that the weapon was found in the same location
where drugs or drug paraphernalia are stored or where part of the transaction
occurred.” United States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003). Once
the Government has met its burden, the defendant can only avoid the
enhancement by showing that “it was clearly improbable that the weapon was
connected with the offense.” Ruiz, 621 F.3d at 396.
      At the outset, we find that the PSR and PSR Addendum contained
sufficient indicia of reliability to allow the district court to rely on them at
sentencing. See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)
(“Generally, a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing.” (internal quotation mark
omitted)). Here, the PSR carefully laid out the items found during the search
of the Fairlane Avenue residence after King was arrested there on February
12, 2013. Further, the probation officer cited several investigative methods
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used in preparing the PSR, including reviewing court and investigative
documents and interviewing three law enforcement officers who were involved
in the case. Because we find that the PSR contained sufficient indicia of
reliability, it was King’s burden to show that the PSR was inaccurate. Id.
      Here, considering the district court’s proper reliance on the PSR and PSR
Addendum, we find that there was no clear error in the district court’s
application of the § 2D1.1(b)(1) enhancement.       As to a temporal relation
between the handgun, King, and the offense of conspiracy to possess with
intent to distribute, the indictment to which King pleaded guilty recited that
the conspiracy lasted from at least January of 2012 until on or about February
11, 2013, just one day before King was arrested and the handgun was found.
The factual resume signed by King again repeated these dates of involvement
in the conspiracy. Further, the PSR provides that, at the time of his second
arrest, King admitted to being involved in drug distribution.
      King counters that the PSR and PSR Addendum at times imply that
King ceased his involvement in the conspiracy around July 3, 2012. He is
correct that the PSR and PSR Addendum present some ambiguities about
King’s role in the conspiracy after July of 2012. He is also correct that a DEA
agent testified at King’s detention hearing that he was unaware of King’s
involvement in the conspiracy after July of 2012. Nonetheless, the indictment
to which King pleaded guilty and the factual resume that he signed are
obviously important pieces of the record. Thus, considering the district court’s
conclusion that the § 2D1.1(b)(1) enhancement applied in light of the entire
record, we find it plausible that the government proved by a preponderance of




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the evidence that there was a temporal relation between the gun, King, and
the offense of conspiracy. 1
       As to the spatial relation between the gun, King, and the offense of
conspiracy, King was arrested in the Fairlane Avenue residence where the
handgun, heroin, and drug paraphernalia were found.                         After the PSR
Addendum was filed, King dropped his argument that he did not reside at the
Fairlane Avenue residence. But he still maintains that the handgun could
have been his wife’s and that it was found in his wife’s nightstand. King
presented no evidence on these matters, so the district court could disregard
his unsworn assertions about them. See Huerta, 182 F.3d at 364-65.
       Here, law enforcement found a handgun with an obliterated serial
number in the same room as a baggie with numerous empty clear capsules. In
the laundry room, they found 13 capsules of heroin. And, next to the backdoor,
they found a grocery bag with numerous pieces of drug paraphernalia.
       Admittedly, we have held that “mere control or dominion over the place
in which contraband or an illegal item is found by itself is not enough to
establish constructive possession when there is joint occupancy of a place.”
United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993). But, here, we find
it plausible that the Government proved by a preponderance that the gun was
King’s, not just that he had mere control over his jointly-occupied residence.
While King shared the residence with his wife, there is no indication that she



       1 A temporal link could also be proven if the gun was possessed close in time to “related
relevant conduct,” meaning conduct that is within a “common scheme or plan” of the offense
of conviction. United States v. Vital, 68 F.3d 114, 118-20 (5th Cir. 1995). At some points in
the PSR, the probation officer relied on King’s distribution of heroin by himself, rather than
as part of the conspiracy. The probation officer found that King’s solo distribution activities
were proven by the presence of heroin and drug paraphernalia at his residence. While a
finding of a temporal relation based on this related relevant conduct would not be clear error,
we determine that it is unnecessary to temporally link the gun possession to mere relevant
conduct because King pleaded guilty to a conspiracy that continued until February of 2013.
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was involved in any drug activity.              Accordingly, the district court could
reasonably infer that the handgun with an obliterated serial number belonged
to King, the participant in the drug distribution conspiracy. The fact that the
gun was found in the same master bedroom as empty capsules and a television
monitor with four different exterior camera feeds (and in the same house as
heroin and other drug paraphernalia) also supports an inference that the
handgun was part of King’s plan for defending a location involved in a drug
conspiracy.
       King counters that, prior to sentencing, he submitted a page from a
website saying that a heroin addict like himself might possess various pieces
of drug paraphernalia to facilitate personal heroin use. Even assuming that
this page from the website constituted viable rebuttal evidence, the page did
not explain that a recreational heroin user would likely possess numerous
empty clear capsules. He also did not explain the legitimate uses for a handgun
with an obliterated serial number.
       On the basis of the entire record, we find it plausible that the
Government proved by a preponderance of the evidence that a spatial relation
existed between the handgun, King, and the offense of conspiracy to possess
with intent to distribute heroin. We also find it plausible that King did not
carry his burden of showing that it was “clearly improbable” that the firearm
was connected to his offense of conviction. Accordingly, we find no clear error
in the district court’s application of the § 2D1.1(b)(1) enhancement.
                                             III.
       King finally contends that declining to apply the safety valve based on a
judicially-determined fact is unconstitutional under Alleyne, 133 S. Ct. 2151. 2


       2 Here, the safety valve was unavailable due to the judicially-determined fact that
King possessed a firearm in connection with his offense. See 18 U.S.C. § 3553(f)(2) (stating
that safety valve is available “if the court finds at sentencing, after the Government has been
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Alleyne held that any fact that increases a statutory mandatory minimum
sentence must be found by a jury beyond a reasonable doubt. Id. at 2160. In
contrast, the safety valve statute provides that a defendant who qualifies for
the safety valve shall be sentenced without regard to a statutory mandatory
minimum sentence. 18 U.S.C. § 3553(f). That is, the safety valve does not
increase the mandatory minimum; instead, it removes it. Accordingly, Alleyne
is not directly applicable.
      Moreover, Alleyne specifies that “the Sixth Amendment applies where a
finding of fact both alters the legally prescribed range and does so in a way
that aggravates the penalty.” 133 S. Ct. at 2161 n.2. Indeed, throughout the
opinion, Alleyne emphasizes the aggravating nature of increasing a mandatory
minimum sentence. Id. at 2160-63. In contrast, the safety valve at issue here
mitigates the penalty.
      The application of Alleyne to the safety valve is an issue of first
impression in this circuit, but the four other Courts of Appeals that have
considered the issue have found that Alleyne does not preclude judicial
factfinding for safety valve determinations. See United States v. Lizarraga-
Carrizales, 757 F.3d 995, 997-99 (9th Cir. 2014); United States v. Harakaly,
734 F.3d 88, 97-99 (1st Cir. 2013); United States v. Silva, 566 F. App’x 804,
807-08 (11th Cir. 2014) (unpublished); United States v. Juarez-Sanchez, 558 F.
App’x 840, 843 (10th Cir. 2014) (unpublished). We join our sister circuits and
find that it is not constitutional error for a judge to find facts that render the
safety valve inapplicable.
                                    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.



afforded the opportunity to make a recommendation, that . . . the defendant did not . . .
possess a firearm or other dangerous weapon . . . in connection with the offense”).
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