     Case: 14-20749      Document: 00513322767         Page: 1    Date Filed: 12/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 14-20749                              FILED
                                                                        December 28, 2015

UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk

              Plaintiff - Appellee

v.

RUDOLFO CARRANZA-MALDONADO, also known as Rodolfo Carranza,
also known as Rudy Little-R., also known as Rudolfo Carranza, also known
as Rudolfo Caranza,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CR-183


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Rudolfo     Carranza-Maldonado          appeals      his    four-level         sentence
enhancement for possessing a firearm in connection with another felony
offense. For the reasons explained below, we VACATE the enhancement and
REMAND for resentencing.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20749
                                      I.
       Houston Police Department officers arriving at an apartment complex
parking lot in response to a call about a suspicious person observed Carranza
and three others enter a vehicle. An officer noticed Carranza attempt to hide
something under the driver’s seat where he sat. Officers also detected the
smell of marijuana emitting from the vehicle as they approached. Officers
detained the occupants and searched the vehicle. They found a loaded semi-
automatic pistol under Carranza’s seat and two plastic bags containing
approximately 100 grams of marijuana under the front passenger seat.
Carranza was arrested, and he pleaded guilty to possessing a firearm while he
was “illegally . . . in the United States.”    18 U.S.C. § 922(g)(5)(A).   The
passenger, Cavazo, was also arrested and later convicted in state court of
misdemeanor possession of marijuana.
      The presentence report (PSR) concluded that Carranza possessed the
firearm in connection with a state marijuana felony, which resulted in a four-
level enhancement under section 2K2.1(b)(6)(B) of the Guidelines. Carranza
objected to this enhancement, arguing that there was no evidence linking him
to the marijuana found under Cavazos’s seat. The district court overruled the
objection, adopted the PSR, and sentenced Carranza at the low end of the
Guidelines to 27 months. If the district court had not applied the disputed
enhancement, the Guidelines range would have been 15 to 21 months.
                                      II.
      Under section 2K2.1(b)(6)(B) of the Guidelines, a four-level enhancement
is applied if the defendant “used or possessed any firearm or ammunition in
connection with another felony offense.” We review the district court’s factual
determination that an enhancement applies for clear error, which requires us
to determine whether application of the enhancement was “plausible in light
of the record as a whole.” United States v. Williams, 610 F.3d 271, 292 (5th
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                                  No. 14-20749
Cir. 2010) (internal quotations omitted). Any legal questions are reviewed de
novo. United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002); see
also United States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015)
(noting that legal questions involving the applicability of the Guidelines are
reviewed de novo).
      The “other felony offense” cited in the PSR is “delivery of marihuana,”
which is a state jail felony under Texas law. Tex. Health & Safety Code
§ 481.120(b)(3) (providing state jail felony for delivery offense involving “five
pounds or less but more than one-fourth once”). But as Carranza points out,
at most the offense could be attempted delivery under state law as no
marijuana was actually delivered. An attempt to commit a state jail felony is
a misdemeanor. Tex. Penal Code § 15.01(d).
      The government tries to resuscitate the enhancement by arguing that
Carranza’s conduct would have nonetheless constituted a felony under the
federal “possession with intent to distribute” statute (21 U.S.C. § 841(a)(1)) or
a related conspiracy or aiding and abetting offense. It contends that the same
factual basis supporting the district court’s conclusion that there was a
sufficient connection between Carranza and the drugs to implicate the state
offense would support a similar finding for the federal offenses.
      But we conclude that the scant record in this case provides an insufficient
basis for tying the drugs to Carranza. Although a defendant’s control of a vehicle
may support an inference that he constructively possesses contraband located
inside, see, e.g., United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996)
abrogated on other grounds by United States v. Vargas-Ocampo, 747 F.3d 299,
300–02 (5th Cir. 2014), all that has been established in this case is that
Carranza sat in the driver’s seat of the van when officers arrived at the scene.
The officer observed Carranza attempting to hide something under the driver’s
seat, which supports the finding that he possessed the firearm found there.
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                                No. 14-20749
But there is no evidence indicating that he owned the van or had previously
driven it that would alone support a finding that he exercised control over the
contents of other areas of the vehicle not within his immediate reach. This is
especially true given that, like Carranza, Cavazos had only just entered the
vehicle and sat in the seat beneath which the drugs were hidden. Cf. United
States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) (holding that even when a
defendant made furtive movements near a locked glove box where contraband
was located, the passenger was in “exclusive control” of the contraband given
that the key was found where the passenger had been sitting). The odor of
burnt marijuana the government emphasizes is also consistent with the
inference that Cavazos had been smoking the marijuana and hid his remaining
stash beneath his seat. No cash, drug ledgers, or other evidence typical of a
larger drug trafficking operation that might help tie the marijuana to Carranza
were found at the scene.
      On this record, we cannot conclude that there was a sufficient basis for
finding that Carranza possessed the firearm in connection with a drug felony
for which he can be held responsible. We VACATE Carranza’s sentence and
REMAND for resentencing.




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