     Case: 17-40375       Document: 00514667786        Page: 1    Date Filed: 10/03/2018




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


                                      No. 17-40375
                                                                                  FILED
                                                                            October 3, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

           Plaintiff–Appellee,

v.

ADAN MELENDEZ, also known as 12,

           Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:14-CR-404-1


Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
PER CURIAM:*
       In this drug-trafficking appeal, Adan Melendez raises various
evidentiary and sentencing challenges related to his convictions. We have
carefully reviewed the briefs, pertinent parts of the record, and the applicable
law—plus we have heard oral argument from the parties. Having done so, we
conclude that Melendez’s assorted challenges lack merit.
       As for sufficiency of the evidence, the government’s evidence at trial was
both abundant and clear. There was more than sufficient evidence for a
reasonable jury to convict Melendez on Counts 2, 5, 7, 10, 12, 19, and 24 (the

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40375
only counts he appeals). There was also ample evidence to support the two-
level “dangerous weapon” enhancement imposed by the district court. On this
point, Melendez’s arguments parallel his sufficiency arguments challenging
Count 24, and we find them similarly unpersuasive. There was plentiful
evidence to support both his convictions and the “dangerous weapon”
enhancement.
      As for the district court’s application of other sentencing enhancements,
we have repeatedly held that “[q]uestions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Many of
Melendez’s arguments were raised for the first time on appeal and are factual
in nature. Thus, it was incumbent upon Melendez “to make and factually
develop in the district court all arguments concerning application of the
guidelines he believed might persuade the judge to alter the sentence he now
challenges.” Id. We will not and cannot consider his factual arguments here,
“for we are without appellate authority to correct his sentence.” Id.
      As for Melendez’s argument that his enhancements for “use of violence”
and possession of a “dangerous weapon” were both impermissibly double
counted with his conviction for possession of a firearm in furtherance of drug
trafficking, we hold there was no double counting. Melendez’s double-counting
arguments are legal in nature, but were raised for the first time on appeal.
Such arguments are thus subject to plain error review. United States v. Soza,
874 F.3d 884, 889 (5th Cir. 2017). Count Two, conspiracy to commit money
laundering, was the base offense, not possession of a firearm in furtherance of
drug trafficking. Thus, the enhancements were added to the money laundering
charge, not to the firearm possession charge. Also, there could be no double
counting as to the “use of violence” enhancement because the district court did
not rely on the firearm when deciding whether the enhancement applied.
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                                  No. 17-40375
Instead, the court relied on incidences of violence or threatened violence
contained in the presentencing report. Thus, the district court did not commit
error or plain error when it decided to apply either enhancement.
      Nor did the district court commit error, plain or otherwise, when it
refused to award an “acceptance of responsibility” reduction. Melendez failed
to request this sentence reduction at trial and raises this issue for the first time
on appeal. Under Melendez’s own theory, the success of this argument hinges
upon the success of his other claims. As those other claims have failed, this
claim, applying Melendez’s own logic, must fail too.
      A reasonable jury was presented with more than ample evidence to find
Melendez guilty. And the district court convincingly explained its sentencing
decisions. Accordingly, we AFFIRM Melendez’s convictions as to Counts 2, 5,
7, 10, 12, 19, and 24. We also AFFIRM the sentence imposed by the district
court for essentially the same reasons articulated by that court during
Melendez’s sentencing hearing.




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