     Case: 19-10562       Document: 00515421326         Page: 1     Date Filed: 05/19/2020




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

                                                                                 FILED
                                     No. 19-10562
                                                                             May 19, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOE EZEQUIEL CARCAMO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-12-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Joe Ezequiel Carcamo pleaded guilty to possession of a firearm as a felon,
in violation of 18 U.S.C. § 922(g)(1), and was sentenced to, inter alia, 78
months’ imprisonment. He challenges his sentence, claiming the district court
erroneously imposed a six-level enhancement under Sentencing Guideline
§ 2B3.1(b)(2)(B) based on finding he participated in a robbery in which a
firearm was “otherwise used” by one of Carcamo’s accomplices to gesture and


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10562

use the firearm as a pointer in instructing a friend of the victim. He contends
it was not reasonably foreseeable that an accomplice would use a firearm in
this manner because: neither he nor his accomplices brought a firearm to the
scene of the robbery; and, after an accomplice found the victim’s firearm at the
scene, the accomplice removed the firearm’s magazine before using it in the
robbery.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). A factual finding is clearly erroneous only if it is not
“plausible in [the] light of the record as a whole”. Id. (internal quotation marks
and citation omitted).
      Guideline § 2B3.1(b)(2)(B) provides a six-level enhancement where “a
firearm was otherwise used” in the commission of a robbery. Defendant’s
relevant conduct, for which the court accounts in determining the applicable
advisory Guidelines sentencing range, Witte v. United States, 515 U.S. 389, 393
(1995), includes, under Guideline § 1B1.3(a)(1)(A), acts and omissions for
which he was directly responsible and, under § 1B1.3(a)(1)(B), “in the case of a
jointly undertaken criminal activity . . . all acts and omissions of others that
were—(i) within the scope of the jointly undertaken criminal activity, (ii) in
furtherance of that criminal activity, and (iii) reasonably foreseeable in



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                                  No. 19-10562

connection with that criminal activity”. A finding of reasonable foreseeability
is reviewed for clear error. United States v. Gutierrez-Mendez, 752 F.3d 418,
429 (5th Cir. 2014) (citation omitted).
      Regarding Carcamo’s contentions, the district court was persuaded by
the Government’s claim that it was foreseeable by the start of the robbery, in
which Carcamo was an active participant, that a firearm would be “otherwise
used” in some manner because Carcamo’s accomplice, in Carcamo’s presence,
found and handled the victim’s firearm at the scene of the robbery before it
began.   See U.S.S.G. § 2B3.1(b)(2)(B).       As the Government contends, the
accomplice’s finding and handling the firearm at the scene of the robbery prior
to the robbery’s commencement makes it plausible Carcamo knew the
accomplice was using a firearm when Carcamo subsequently began
participating in the robbery. Accordingly, the court’s finding is plausible in the
light of the record as a whole.
      AFFIRMED.




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