     Case: 18-11536      Document: 00515145894         Page: 1    Date Filed: 10/04/2019




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

                                    No. 18-11536                             FILED
                                  Summary Calendar                     October 4, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR JESUS CHAVEZ-LUNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-159-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Hector Jesus Chavez-Luna pleaded guilty of conspiracy to possess with
intent to distribute a controlled substance, and he asserts in this appeal that
the district court erred in determining his sentence. The pending motion for
substitution of counsel is GRANTED.
       The district court erred, Chavez-Luna contends: (1) in determining the
quantity of drugs for which he was accountable at sentencing; (2) in increasing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-11536      Document: 00515145894        Page: 2    Date Filed: 10/04/2019


                                    No. 18-11536

his offense level by two levels pursuant to U.S.S.G. § 2D1.1(b)(2) because,
during an escape attempt, Chavez-Luna entered a residence and threatened
the homeowner with bodily harm; (3) in increasing the offense level by two
levels pursuant to U.S.S.G. § 2D1.1(b)(12) for maintenance of a premises for
the purpose of distributing a controlled substance; and (4) in applying a four-
level role adjustment pursuant to U.S.S.G. § 3B1.1(a) because Chavez-Luna
was an organizer-leader of a criminal activity involving five or more
participants or that was otherwise extensive. We review these questions for
clear error. See United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
Because the unrebutted facts in the presentence report have an adequate and
sufficiently reliable factual basis, they were properly relied upon by the district
court in overruling Chavez-Luna’s objections to the drug quantity and
guidelines enhancements. See United States v. Alaniz, 726 F.3d 586, 618-19
(5th Cir. 2013).
      For the first time on appeal, Chavez-Luna asserts that the threat
enhancement was applied improperly because the threat was not in
furtherance of a drug trafficking offense. Because the threat was part of the
relevant conduct, Chavez-Luna cannot show that the district court plainly
erred in applying the enhancement. See Puckett v. United States, 556 U.S. 129,
135 (2009); see also United States v. Teague, 772 F. App’x 149, 150 (5th Cir.
2019); United States v. Torres, 694 F. App’x 937, 939, 942 (5th Cir. 2017). 1
      AFFIRMED.




      1  Unpublished opinions issued on or after January 1, 1996, may be persuasive
authority. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.


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