     Case: 13-41128      Document: 00512953282         Page: 1    Date Filed: 03/02/2015




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

                                    No. 13-41128
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                              March 2, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

LINETH GUERRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:12-CR-874


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Lineth Guerra pleaded guilty to conspiracy to possess with intent to
distribute 1,000 kilograms or more of marijuana and 5 kilograms or more of
cocaine. The presentence report assigned a base offense level of 36 based on
an equivalent marijuana weight of 18,250.8 kilograms of marijuana. Two
levels were added under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous
weapon because five firearms were found in a storage unit where 6,039.5


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41128

kilograms of marijuana was stored. Three more levels were added under
U.S.S.G. § 3B1.1(b) based on Guerra’s role in the offense. The district court
granted Guerra a three-level reduction for acceptance of responsibility. This
resulted in a total offense level of 38 and a recommended sentencing range of
235 to 293 months in prison. The district court found that this range satisfied
the sentencing factors of 18 U.S.C. § 3553(a). The district court, however,
granted the Government’s sentencing motion and sentenced Guerra to 160
months in prison. On appeal, Guerra argues that her sentence is unreasonable
because the district court misapplied the guidelines and because the sentence
is greater than necessary to meet the sentencing goals in § 3553(a).
      Guerra argues that the district court erred in imposing the three-level
enhancement pursuant to § 3B1.1(b) based on the conclusion that she was a
manager or supervisor. The determination that a defendant is a manager or
supervisor under § 3B1.1(b) is a factual finding we review for clear error.
United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). Contrary to her
argument, the record shows that Guerra supervised and managed the other
members of the conspiracy following her husband’s arrest. Guerra has not
established that the district court clearly erred in imposing the three-level
enhancement under § 3B1.1(b). See id.
      She also argues that the district court erred when it applied the two-level
weapons enhancement pursuant to § 2D1.1(b)(1).               A district court’s
determination that the § 2D1.1(b)(1) weapons enhancement applies is also a
factual finding reviewed for clear error. United States v. Zapata-Lara, 615
F.3d 388, 390 (5th Cir. 2010). To support the enhancement, the Government
must demonstrate a “temporal and spatial relationship [between] the weapon,
the drug trafficking activity, and the defendant.” Id.; see also United States v.
Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008) (holding that a large



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                                  No. 13-41128

amount of drugs increases the likelihood of weapons). If the Government
satisfies its burden, “the burden shifts to the defendant to show that it was
clearly improbable that the weapon was connected with the offense.” United
States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010). Immigration and Customs
Enforcement agents seized 510 bricks of marijuana weighing more than 6,000
kilograms from a storage unit that was part of the conspiracy. The agents also
seized two shotguns and three assault rifles from the storage unit. Neither in
the district court nor on appeal has Guerra produced any evidence or argument
showing that it was clearly improbable that the weapons were connected with
the offense.   The district court did not err in applying the § 2D1.1(b)(1)
enhancement. See Zapata-Lara, 615 F.3d at 390.
      Finally, Guerra asserts that the 160-month sentence is unreasonable
and grossly disproportionate. Sentences are reviewed for reasonableness in
light of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005). Because Guerra failed to object in the district court
to the reasonableness of his sentence, we review her arguments for plain error.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Guerra’s
arguments do not show a clear error of judgment on the district court’s part in
balancing the § 3553(a) factors; instead, they constitute a mere disagreement
with the weighing of those factors. That an appellate court “might reasonably
have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (5th
Cir. 2007).
      AFFIRMED.




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