     Case: 12-40452       Document: 00512130997         Page: 1     Date Filed: 01/31/2013




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

                                                                            FILED
                                                                         January 31, 2013
                                     No. 12-40452
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS CHAGOYA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1240-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jesus Chagoya appeals his sentence following his guilty plea conviction for
possession with the intent to distribute marijuana under 21 U.S.C. § 841.
Chagoya argues that the district court reversibly erred in maintaining the
increase in his offense level under U.S.S.G. § 2D1.1(b)(12) (2011), which provides
for a two-level increase if the “defendant maintained a premises for the purpose
of manufacturing or distributing a controlled substance.” The application note
provides, in relevant part, that “[a]mong the factors the court should consider in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40452

determining whether the defendant ‘maintained’ the premises are (A) whether
the defendant held a possessory interest in (e.g., owned or rented) the premises
and (B) the extent to which the defendant controlled access to, or activities at,
the premises.” § 2D1.1, comment. (n.28).
      This court reviews the district court’s interpretation of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Serfass, 684 F.3d 548, 549 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012). This
court will not find clear error if the district court’s finding is plausible in light of
the record as a whole. Id. A finding of fact is clearly erroneous only if, after
reviewing all of the evidence, this court is left with the “definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks
and citation omitted).
      Citing the recency of the § 2D1.1(b)(12) adjustment and the lack of
controlling authority, Chagoya argues that this court should defer to cases such
as United States v. Morgan, 117 F.3d 849, 856-58 (5th Cir. 1997), and United
States v. Soto-Silva, 129 F.3d 340, 345-47 (5th Cir. 1997), which addressed the
burden of proof required for convictions for maintaining a premises for the
distribution of controlled substances under 21 U.S.C. § 856(a)(1). He further
argues that such cases require a showing of “more than just dominion and
control over the premises” and instead require a showing of “supervisory
control.”
      When Congress directed the addition of the two-level enhancement later
designated as § 2D1.1(b)(12), it specified that the enhancement was to apply to
situations wherein the “defendant maintained an establishment for the
manufacture or distribution of a controlled substance, as generally described in
section 416 of the Controlled Substances Act (21 U.S.C. 856).” See Pub. L. No.
111-220, § 6(2) (2010) (emphasis added); see also United States v. Miller, 698
F.3d 699, 706 (8th Cir. 2012) (assuming that § 2D1.1(b)(12) has the same
elements as the 21 U.S.C. § 856(a)(1) offense that it parallels).

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                                 No. 12-40452

      However, even if Chagoya is correct in his assertion that cases interpreting
§ 856(a)(1) are relevant to the instant analysis, he has not provided any
authority which shows that the district court clearly erred. In Morgan, 117 F.3d
at 857, the court held that supervisory control over the premises was merely
“one factor” that should be considered as probative of maintaining a premises;
the court did not hold that it was the sole determinative factor. In the instant
case, Chagoya resided at the premises, and he shared responsibility for the
utilities and the expenses. Chagoya also controlled access to the premises, as
evidenced by the fact that “Pepe” asked for Chagoya’s permission to store the
marijuana on the premises and the fact that Chagoya was to be compensated by
Pepe. Chagoya’s willingness to call Pepe to complain about the condition of the
marijuana also suggests that he was in control of the premises. In sum,
Chagoya has not shown that the district court clearly erred in assessing him an
increase in offense level under § 2D1.1(b)(12). See Serfass, 684 F.3d at 549.
      AFFIRMED.




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