     Case: 10-40939 Document: 00511478331 Page: 1 Date Filed: 05/16/2011




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

                                                 FILED
                                                                            May 16, 2011
                                     No. 10-40939
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ANTHONY JACOB SANCHEZ,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 2:09-CR-1018-2


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Anthony Jacob Sanchez appeals his 52-month sentence imposed following
his guilty-plea conviction for conspiracy to possess, with intent to distribute, less
than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 846. Sanchez contends the district court violated Sentencing Guideline
§ 6A1.3, p.s., and Federal Rule of Criminal Procedure 32(i)(3)(B), by overruling
his objection to the Guideline § 2D1.1(b)(1) two-level enhancement for possession
of a dangerous weapon, without resolving disputed facts. He further contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40939

the court clearly erred in imposing the two-level enhancement because: the
Government did not demonstrate, by a preponderance of the evidence, that his
codefendant’s possession of the firearm was reasonably foreseeable to him; and
that possession was not connected to the offense.
      Although Sanchez challenged the enhancement in district court, he did not
object at sentencing to the district court’s claimed failure to comply with
Guideline § 6A1.3 or Rule 32. Accordingly, that contention is reviewed only for
plain error. See, e.g., United States v. Reyna, 358 F.3d 344, 347-50 (5th Cir.
2004); United States v. Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001). To
demonstrate reversible plain error, Sanchez must show a clear or obvious error
that affects his substantial rights. E.g., Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If reversible plain error is shown, our court retains discretion
to correct it and, generally, will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Our court has “rejected the proposition that a [sentencing] court must
make a catechismic regurgitation of each fact determined”. United States v.
Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (citations and internal quotation
marks omitted).    Instead, it may “make implicit findings by adopting the
[presentence investigation report (PSR)]”. Id. The record does not show that the
portion of the video recording submitted by defense counsel at sentencing was
evidence demonstrating that any of the underlying facts provided in the PSR
were inaccurate or materially untrue. See United States v. Washington, 480 F.3d
309, 320 (5th Cir. 2007).
      The court considered the contentions of the parties, including those by
defense counsel that the possession of the firearm by Sanchez’ codefendant was
not foreseeable to Sanchez and that the firearm possession was not connected to
the offense. Moreover, the court adopted, in relevant part, the PSR, which
provided that Sanchez’ codefendant, who lived with Sanchez, showed the loaded



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                                  No. 10-40939

weapon to the confidential informant in the bedroom, where the weapon was
located during the course of the drug transaction.
      Accordingly, we are “not presented with a record that leaves this court
‘second-guessing’ the basis of the sentencing court’s decision”. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 765 (5th Cir. 2008). With respect to Sanchez’
contention that the court failed to resolve disputed facts, he has not identified
an error that is obvious or “readily apparent”. See United States v. Vital, 68 F.3d
114, 119 (5th Cir. 1995); see Puckett, 129 S. Ct. at 1429.
      As noted, Sanchez also contends, as he did in district court, that the
district court erred in imposing the two-level enhancement under Guideline
§ 2D1.1 because, as discussed above:        the Government did not show, by a
preponderance of the evidence, that his codefendant’s firearm possession was
reasonably foreseeable to Sanchez; and because that possession was not
connected to the offense. Although post-Booker, the Sentencing Guidelines are
advisory only, and an ultimate sentence is reviewed for reasonableness under an
abuse-of-discretion standard, the district court must still properly calculate the
guideline-sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
Cisneros-Gutierrez, 517 F.3d at 764; United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      Accordingly, the court’s decision whether to impose Guideline § 2D1.1’s
enhancement is reviewed de novo, but the facts found in applying that guideline
are reviewed only for clear error. United States v. Zapata-Lara, 615 F.3d 388,
390 (5th Cir. 2010). “Clear-error review only requires a factual finding to be
plausible in light of the record as a whole.” United States v. Rodriguez, 630 F.3d
377, 380 (5th Cir. 2011). The unrebutted facts reveal: Sanchez’ codefendant
knowingly possessed the firearm during the course of the methamphetamine
transaction at their shared residence; and Sanchez’ codefendant showed the

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                                No. 10-40939

loaded firearm to the confidential informant while they waited in the bedroom
for Sanchez to return with the drugs. The court’s finding is plausible based on
the record as a whole. See Cisneros-Gutierrez, 517 F.3d at 765-66.
      AFFIRMED.




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