     Case: 11-10205     Document: 00511755907         Page: 1     Date Filed: 02/13/2012




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

                                                                            FILED
                                                                         February 13, 2012

                                       No. 11-10205                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

SEBASTIAN DELAGARZA,

                                                  Defendant–Appellant



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CR-55-3


Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
        This    case   is   an    appeal     from     the    sentence      imposed      upon
Defendant–Appellant Sebastian DeLaGarza in connection with his guilty plea
for conspiracy to possess five hundred grams or more of methamphetamine with
intent to distribute. The district court sentenced DeLaGarza to 150 months
imprisonment. Because we find that the district court did not make sufficient
factual findings, we VACATE and REMAND for resentencing.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10205

            I. FACTUAL AND PROCEDURAL BACKGROUND
      On June 5, 2009, DeLaGarza met with undercover agents of the Drug
Enforcement Administration (“DEA”) in an attempt to purchase 100 pounds of
marijuana. Although he was unable to secure enough funds to complete the
marijuana transaction, DeLaGarza mentioned that his cousin, Rogelio Estrada,
could obtain large quantities of methamphetamine.         Two months later,
undercover DEA Special Agent J. Gallo contacted DeLaGarza about purchasing
two kilograms of meth, and DeLaGarza quoted Gallo a price of $40,000 per
kilogram.   Shortly thereafter, a confidential informant (“CI”) met with
DeLaGarza and Estrada to negotiate the meth transaction and to obtain a
sample of the drugs.    DeLaGarza then made arrangements with Gallo to
complete the transaction.
      On August 12, DeLaGarza told Gallo that Estrada would meet with the CI
at a local motel, but that he would only sell one kilogram of meth at a time.
Later that day, law enforcement officers, who had set up surveillance, observed
Estrada and Oscar Tapia arrive at the motel. The officers also observed Tapia
adjusting something in his front waistband, which the CI later confirmed was
a handgun. Estrada opened the trunk of his car and showed the CI one kilogram
of meth. As the CI led Estrada and Tapia towards the motel room to complete
the transaction, the officers approached the men. Estrada fled on foot and was
observed throwing a pistol into the bushes.        Estrada and Tapia were
subsequently apprehended and placed under arrest.        Estrada admitted to
purchasing the handgun, but explained that Tapia was carrying it when they
arrived at the motel.
      Although DeLaGarza was not arrested during the August 12 transaction,
he was present at the motel, having arrived separately from Estrada and Tapia
to observe the deal. An agent observed DeLaGarza at the scene but was unable



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                                 No. 11-10205

to apprehend him when officers closed in on Estrada and Tapia. DeLaGarza was
arrested months later, after he, Estrada, and Tapia were indicted.
      DeLaGarza pleaded guilty, without a plea agreement, to one count of
conspiracy to possess five hundred grams or more of methamphetamine with
intent to distribute. A presentence investigation report (“PSR”) was prepared
for DeLaGarza, and it assessed a base offense level of 36 because the offense
involved at least five hundred grams but less than one and one-half kilograms
of methamphetamine. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(2).
Two levels were added because DeLaGarza’s co-conspirators possessed a
dangerous weapon when they met with undercover agents to conduct the
methamphetamine transaction. See id. at § 2D1.1(b)(1). After a two-level
reduction for acceptance of responsibility, see id. at § 3E1.1(a), the PSR
calculated DeLaGarza’s total offense level of 36. That offense level, combined
with his criminal history category of I, resulted in a Guidelines imprisonment
range of 188 to 235 months. See id. at ch. 5, pt. A. DeLaGarza filed objections
to the PSR, which the district court overruled. The district court then departed
downward from the Guidelines range and sentenced DeLaGarza to 150 months
of imprisonment and five years of supervised release. This appeal follows.
                       II. STANDARD OF REVIEW
      DeLaGarza argues that the district court erroneously applied the
dangerous-weapon enhancement laid out in Section 2D1.1(b)(1) of the Guidelines
to him. He asserts that the district court did so because it incorrectly applied
the test for a defendant’s personal, rather than vicarious, possession of a
weapon. “[A] district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings are reviewed for clear
error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(internal quotation marks omitted). The Government asserts, however, that
DeLaGarza failed to preserve this argument and that therefore, our review

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                                  No. 11-10205

ought to be for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009); see also United States v. Girod, 646 F.3d 304, 317 (5th
Cir. 2011) (discussing the requirements of plain error). “To preserve error, an
objection must be sufficiently specific to alert the district court to the nature of
the alleged error and to provide an opportunity for correction.” United States v.
Neal, 578 F.3d 270, 272 (5th Cir. 2009). In determining whether a defendant
preserved error, our focus is on the “specificity and clarity of the initial
objection.” Id. at 273.
      Section 2D1.1(b)(1) provides that the defendant’s offense level be increased
by two levels “[i]f a dangerous weapon (including a firearm) was possessed.” The
Government can prove possession in two ways: (1) showing that the defendant
personally possessed the weapon, i.e., “showing a temporal and spatial
relationship of the weapon, the drug trafficking activity, and the defendant”; or
(2) “when another individual involved in the commission of an offense possessed
the weapon, . . . show[ing] that the defendant could have reasonably foreseen
that possession.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010). This latter proof is known as vicarious possession.
      In his objections to the PSR, DeLaGarza stated that he had “no reason to
know that a weapon would be present, as he was to have no involvement with
the actual sale of the drugs. Because the presence of the gun was completely
unforeseeable to [him], no enhancement for possession of a dangerous weapon
should be assessed.” Furthermore, at the sentencing hearing, DeLaGarza’s
attorney argued,

      The government’s evidence makes it very, very clear that Mr. De La
      Garza was completely unaware of the presence of this gun. . . . I
      understand what the case law says about this. I understand that
      the case law says that, you know, it could be reasonably foreseeable
      that someone might bring a gun to a drug sale. But at some point,
      possession of a gun by a co-conspirator has to become so attenuated


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                                  No. 11-10205

      and so separate from the co-conspirator that we can’t hold the
      co-conspirator accountable for it.

In both his objections to the PSR and during his sentencing hearing,
DeLaGarza’s argument was that the presence of the handgun at Estrada and
Tapia’s sale to Gallo was not foreseeable to him. This objection was sufficiently
specific and clear to put the district court on notice that the appropriate test was
one of foreseeability. See Neal, 578 F.3d at 273; cf. United States v. Pineiro, 470
F.3d 200, 204 (5th Cir. 2006) (“We have never required a party to express its
objection in minute detail or ultra-precise terms.”).
                               III. DISCUSSION
      DeLaGarza specifically argues that the district court’s findings of fact
pursuant to Federal Rule of Criminal Procedure 32(i)(3)(B) were insufficient to
support the dangerous-weapon enhancement.            In overruling DeLaGarza’s
objection to the imposition of the enhancement, the district court found

      The adjustment is to be applied if the weapon was present unless it
      is clearly improbable that the weapon was connected with the
      offense. I’m sure you all read comment 3. It gives an example of
      clearly [im]probable, that the defendant was arrested at his
      residence and had an unloaded hunting rifle in his closet, something
      of that nature.

      The government, of course, bears the burden of proving by a
      preponderance of the evidence that the defendant possessed the
      weapon and may do so by showing the temporal and spatial
      relationship between the weapon, the drug trafficking activity, and
      the defendant, which suffices to establish that the defendant
      personally possessed the weapon. I'm citing from U.S. v. Ruiz, 621
      F.3d 390 at keynotes 11 and 12; citing to U.S. v. Cisneros-Gutierrez,
      517 F.3d 751, 764–65, 5th Circuit 2008.

      Once the government meets their burden, the burden shift[s] to the
      defendant to show it was clearly improbable that the weapon was
      connected to the offense.


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      I think all the reasons pointed out by the government, including
      those contained in the presentence report, and just the nature of the
      drug trafficking activity here and the connection between the
      defendants involved in a conspiracy, again, set forth really in the
      presentence report clearly enough to where any reasonable
      inference would be drawn that the government has met their
      burden of establishing that the firearm was connected to the offense
      as required under 2D1.1.

      And I have not heard anything that convinces me it was clearly
      improbable that the weapon would be connected to the offense. So
      for all those reasons, I note the defense objection, I overrule the
      objection.

From this statement, it is clear that the district court was using the personal-
possession test. See United States v. Ruiz, 621 F.3d 390, 396–97 (5th Cir. 2010)
(stating and applying the personal-possession test); Cisneros-Gutierrez, 517 F.3d
at 764–66 (same). This was the incorrect test to apply as it is also clear that
DeLaGarza did not personally possess the gun.
      The Government argues, however, that by expressly adopting the PSR and
“all the reasons pointed out by the government,” the district court implicitly
found that DeLaGarza’s co-conspirators’ possession of a weapon was reasonably
foreseeable to DeLaGarza. Though we have said that the district court may
“make implicit findings by adopting the PSR[, t]his adoption will operate to
satisfy the mandates of Rule 32 [only] when the findings in the PSR are so clear
that the reviewing court is not left to ‘second-guess’ the basis for the sentencing
decision.” United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (footnotes
omitted). In this case, however, the PSR contained no assertion that Estrada
and Tapia’s possession of the weapon was reasonably foreseeable to DeLaGarza.
Moreover, our review of the record indicates to us that the district court’s
reliance on the Government’s reasoning was limited to its finding that the
weapon was connected to the offense, not that the presence of a handgun at the


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                                 No. 11-10205

sale was reasonably foreseeable to DeLaGarza. Therefore, we find that the
district court applied the incorrect Guidelines standard in determining that the
dangerous-weapon enhancement was warranted.
       This finding does not, however, end our inquiry. We must consider
whether the application of the incorrect standard was nonetheless harmless. To
show harmless error, the Government has the “heavy burden,” United States v.
Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010), of convincingly demonstrating
that the district court (1) would have imposed the same sentence absent the
purported error, and (2) that it would have done so for the same reasons. Id. at
714.   In sentencing DeLaGarza, the district court determined that the
Guidelines range of 188 to 235 months of imprisonment was too high and that
a sentence of 150 months of imprisonment was appropriate in light of
DeLaGarza’s personal background, his lack of a criminal history, and the
circumstances surrounding the offense of conviction. The district court did not
explain how it selected the 150-month sentence and it is unclear whether the
Guidelines range influenced the sentence imposed. Therefore, because the
Government cannot convincingly demonstrate that the district court would have
imposed the same sentence, the Government cannot show that the error was
harmless. See Ibarra-Luna, 628 F.3d at 718–19. Accordingly, we VACATE
DeLaGarza’s sentence and REMAND for resentencing. See United States v.
Hooten, 942 F.2d 878, 881–82 (5th Cir. 1991); Zapata-Lara, 615 F.3d at 390–91.




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