     Case: 15-10760      Document: 00513560221         Page: 1    Date Filed: 06/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10760
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 22, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JESSICA ANN ROSEMERGY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-22-2


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jessica Ann Rosemergy appeals the 80-month below-guidelines sentence
the district court imposed after her guilty plea conviction for conspiracy to
possess     with   intent    to   distribute     a   controlled     substance,          namely
methamphetamine. She asserts that the district court erred in imposing a two-
level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a
dangerous weapon. We review a district court’s application of § 2D1.1(b)(1) for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10760     Document: 00513560221        Page: 2   Date Filed: 06/22/2016


                                  No. 15-10760

clear error as a factual finding. See United States v. King, 773 F.3d 48, 52 (5th
Cir. 2014), cert. denied, 135 S. Ct. 1865 (2015).
      Section 2D1.1(b)(1) provides for a two-level increase in the defendant’s
offense level “[i]f a dangerous weapon (including a firearm) was possessed.”
§ 2D1.1(b)(1). The enhancement applies “if the weapon was present, unless it
is clearly improbable that the weapon was connected with the offense.”
§ 2D1.1, comment. (n.11(A)). Rosemergy specifically argues that application of
the enhancement violated her due process rights because the “clearly
improbable” phrase in Comment 11 of the Application Notes to § 2D1.1
impermissibly shifted the burden of proof to her by ignoring the Government’s
obligation to prove the applicability of the sentencing enhancement. This court
has already rejected a similar argument. See United States v. Ortiz-Granados,
12 F.3d 39, 41 (5th Cir. 1994).
      Moreover, contrary to Rosemergy’s assertion, the phrase neither creates
a presumption of wrongdoing nor erodes the Government’s burden, as it is well-
settled that the Government must first prove by a preponderance of the
evidence that the defendant actually or constructively possessed the weapon.
See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). Also,
when, as here, a co-defendant personally possessed the weapon, “the
[G]overnment must show that the defendant could have reasonably foreseen
that possession.”    Id. (internal quotation marks and citation omitted).
Therefore, the defendant has the burden of showing that it is clearly
improbable that the weapon was connected to the offense if, and only if, the
Government satisfies its initial burden of proving that it was reasonably
foreseeable to the defendant that a co-defendant possessed a weapon. Id. at
391 n.5.




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                                 No. 15-10760

      Even if Rosemergy could show that the district court impermissibly
shifted the burden of proof to her, her due process violation claim still fails
under harmless error review. See Sealed Appellee 1 v. Sealed Appellant 1, 767
F.3d 418, 424-25 (5th Cir. 2013). Based on the extensive and undisputed
evidence in the record, Rosemergy cannot demonstrate a “reasonable
likelihood” that her substantial rights were affected.           Id.    The facts
demonstrate that (1) Ayala and her co-defendant were involved in a criminal
enterprise,   with    Rosemergy       supplying      her    co-defendant      with
methamphetamine; (2) the co-defendant stored the drugs at her residence; and
(3) the co-defendant affirmatively brandished a shotgun in that same residence
during a time when both the drugs and Rosemergy were present. Therefore,
the district court could infer foreseeability from Rosemergy’s co-defendant’s
knowing possession of the weapon, see Zapata-Lara, 615 F.3d at 390, and
Rosemergy does not set forth any evidence suggesting that it was clearly
improbable that the weapon was connected with the drug offense. See § 2D1.1,
comment. (n.11(A)).
      The district court did not clearly err by applying § 2D1.1(b)(1)’s two-level
enhancement. See King, 773 F.3d at 52. AFFIRMED.




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