     Case: 16-10885      Document: 00513992333         Page: 1    Date Filed: 05/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10885                                   FILED
                                  Summary Calendar                             May 15, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESSE CARRILLO, JR., also known as Baby 9,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-22-1


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jesse Carrillo, Jr., pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine and was sentenced to 188 months of
imprisonment and four years of supervised release. Carrillo challenges the
district court’s calculation of his sentence, arguing that the district court
clearly erred by applying an enhancement pursuant to U.S.S.G § 2D1.1(b)(1),
based on the finding that he possessed a dangerous weapon in connection with


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10885

the offense, and an enhancement pursuant to U.S.S.G. § 2D1.1(b)(12), based
on the finding that he maintained a premises for purposes of distributing a
controlled substance.
      Carrillo argues that the district court erred by applying the § 2D1.1(b)(1)
enhancement because there is no evidence that he possessed a weapon while
conducting any drug trafficking transactions or that any such transactions
occurred at his residence. He also argues that the firearm was not in proximity
to the drugs.
      We find no clear error with the district court’s application of the
enhancement. The fact that some drug trafficking conduct occurred outside of
Carrillo’s residence is not fatal to the application of the § 2D1.1(b)(1)
enhancement given that Carrillo’s conduct––storing drugs and drug proceeds
in his residence––is clearly associated with his distribution offense. See United
States v. Marquez, 685 F.3d 501, 508 (5th Cir. 2012). Likewise, although the
gun was found in a different location on the premises than the drugs, the
district court could have drawn a reasonable inference from the unrebutted
evidence in the presentence report that the weapon was accessible to Carrillo
to protect the methamphetamine and drug proceeds stored in the garage.
See United States v. King, 773 F.3d 48, 52 (5th Cir. 2014); see also United States
v. Juluke, 426 F.3d 323, 326, 328-29 (5th Cir. 2005).
      Carrillo’s challenge to the premises enhancement under § 2D1.1(b)(12)
is likewise unavailing. He argues that that the storage of the drugs in his
house was “incidental or collateral” to the primary purpose of the premises,
which was to provide him and his family with a place to live. In support of his
argument, Carrillo points primarily to the fact that he did not sell
methamphetamine directly out of his home, but instead transported the drugs
elsewhere for sale. Certainly, § 2D1.1(b)(12) requires that a defendant’s



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                                  No. 16-10885

purpose of storing a controlled substance for distribution at a premises may
not be merely “incidental or collateral,” but that use “need not be the sole
purpose for which the premises was maintained.” § 2D1.1, cmt. n.17.
Therefore, a defendant’s additional use of a premises as a family home is not
necessarily fatal to application of § 2D1.1(b)(12), so long as facts in the record
support that storage of the controlled substance was “one of the defendant’s
primary or principal uses for the premises.” Id; accord United States v.
Barragan-Malfabon, 537 F. App’x 483, 484-85 (5th Cir. 2013) (unpublished).
      Under clear error review, the district court’s conclusion that
§ 2D1.1(b)(12) applies need only be “plausible in light of the record as a whole.”
See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Here, there
are sufficient facts in the record, which taken together support the district
court’s finding that Carrillo’s storage of the methamphetamine in his home for
distribution was “one of [his] primary or principal uses for the premises” and
was not merely an “incidental or collateral” use. § 2D1.1, cmt. n.17. For
example, the district court was free to consider the unrebutted factual findings
in   the   Pre-sentence     Report    illustrating   the   large    quantity    of
methamphetamine stored in Carrillo’s garage, as well as the over $12,000 in
drug proceeds also stored there and various other containers with
methamphetamine residue. The PSR further contained evidence suggesting
that, in addition to the garage, Carrillo also used his former residence as a
premises for drug distribution and likely for storage, and he conducted drug
transactions in the parking lot of that residence on multiple occasions.
      The judgment of the district court is AFFIRMED.




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