     Case: 12-10639       Document: 00512194304         Page: 1     Date Filed: 04/02/2013




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

                                                                            FILED
                                                                            April 2, 2013
                                     No. 12-10639
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL PATRICK MOORE, also known as Danny,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-198-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Daniel Patrick Moore was convicted of possession with intent to distribute
methamphetamine and sentenced to 225 months of imprisonment, to run
consecutively to his sentence in a pending state case, and three years of
supervised release. On appeal, Moore contends that the district court erred by
applying the sentence enhancement in U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) [hereinafter “U.S.S.G.”] for possession of a dangerous weapon 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10639

that the use of relevant conduct to increase his sentence violated the Sixth Amendment.
      Section 2D1.1 provides for a two-level enhancement of a defendant’s
offense level “[i]f a dangerous weapon (including a firearm) was possessed.”
§ 2D1.1(b)(1). The Government can prove personal possession of a dangerous
weapon “by showing a temporal and spatial relationship of the weapon, the drug
trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d
388, 390 (5th Cir. 2010). It may prove vicarious possession “when another
individual involved in the commission of an offense possessed the weapon . . .
[and] the defendant could have reasonably foreseen that possession.”                Id.
(internal   quotation    marks    and    citation   omitted);    see   also   U.S.S.G.
§ 1B1.3(a)(1)(B) (A defendant involved in a “jointly undertaken criminal activity”
is responsible under the Guidelines for “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”);
United States v. DeLaGarza, 460 F. App’x 406, 409 (5th Cir. 2012) (unpublished
opinion) (“This latter proof is known as vicarious possession.”).
      Ordinarily, we review de novo the district court’s legal application of
§ 2D1.1(b)(1). Zapata-Lara, 615 F.3d at 390. However, since Moore failed to
preserve the specific arguments he raises on appeal, his arguments will be
reviewed for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). To show plain error, Moore must show that the error
was clear or obvious and affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it “‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’”         Id. (alteration in
original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
      The district court applied the dangerous weapon enhancement based on
the shotgun found in Moore’s codefendant’s home. Moore contends that the
district court incorrectly applied an inapposite, personal possession rationale to
support the enhancement and supplanted the presentence report (PSR) finding

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                                  No. 12-10639

that he vicariously possessed the weapon. The district court referred to the
temporal and spatial relationship between the shotgun and the drug-trafficking
activity in which Moore and his codefendants were jointly involved. In so doing,
the district court incorporated the requisite findings that the codefendant
possessed the shotgun in connection with the offense and that Moore could have
reasonably foreseen that his codefendant would possess a weapon in furtherance
of their jointly undertaken criminal activity. The district court also adopted the
PSR, which expressly concluded that Moore could have reasonably foreseen that
his codefendant would possess a weapon in connection with the offense. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 765-66 (5th Cir. 2008). We
perceive no error in the district court’s application of the vicarious possession
test.
        Moore’s contention that there was insufficient evidence that the
codefendant possessed the shotgun in connection with the offense is unavailing.
He ignores the unrebutted evidence in the PSR that the codefendant sold the
methamphetamine he obtained from Moore at the codefendant’s residence; the
shotgun was found in the codefendant’s bedroom along with a holster,
ammunition, and drug-trafficking paraphernalia; and the codefendant was
reputed to carry a firearm. Further, one of the drug sales that occurred shortly
before the search of the codefendant’s residence was actually conducted in the
codefendant’s bedroom. Based on this evidence, the district court was entitled
to infer that the codefendant possessed the shotgun in connection with the
offense. See Zapata-Lara, 615 F.3d at 390. To the extent that Moore argues
that he could not have foreseen that the codefendant would possess the shotgun,
“[i]t was readily foreseeable that firearms would be employed as tools of the drug
trafficking trade.” United States v. Garza, 118 F.3d 278, 286 (5th Cir. 1997).
There was no error, plain or otherwise, in the application of the enhancement for
possession of a dangerous weapon in § 2D1.1(b)(1).



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                                No. 12-10639

      Moore’s contention that the use of relevant conduct to enhance his
sentence violated the Sixth Amendment is foreclosed. See United States v.
Booker, 543 U.S. 220, 244-45 (2005); United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005).
      The judgment of the district court is AFFIRMED.




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