     Case: 14-50376      Document: 00512998394         Page: 1    Date Filed: 04/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50376                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    April 8, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DAVID MEDRANO-RODRIGUEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-785-1


Before REAVLEY, SMITH and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant         David     Medrano-Rodriguez          challenges              the
application of a two-level sentencing enhancement for making a credible threat
of violence in connection with a drug trafficking offense. We affirm.
                    I. Factual and Procedural Background
       David Medrano-Rodriguez pleaded guilty to possession with intent to
distribute 500 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50376
(b)(1)(A)(viii). The presentence report (“PSR”) described the circumstances of
the offense. On April 17, 2012, Border Patrol agents apprehended four aliens
near Dimmit County, Texas, all of whom admitted to being in the United States
illegally.    After the agents received notice that an abandoned bundle of
marijuana was discovered nearby, the agents searched the aliens’ backpacks.
Medrano-Rodriguez consented to a search. The search revealed four generic
brand fruit cans inside his backpack. Medrano-Rodriguez took responsibility
for the items in the backpack and told the agents that the cans contained food.
The PSR reflects that drug detection canines did not detect drugs.
      Medrano-Rodriguez and the other aliens were transported to the Laredo
West Station for “processing.” Subsequently, agents transferred custody of the
aliens to the Carrizo Springs, Texas, Border Patrol Station.               Agents
interviewed one of the female aliens, Dilcia Mabel Castillo-Ruiz, who indicated
that she was part of a group of 60 illegal aliens that crossed into the United
States in April 2012. She stated that Medrano-Rodriguez was one of the four
guides for the aliens. According to the PSR:
      During the apprehension she was placed in a small group with
      other aliens who had been arrested, including Medrano-Rodriguez.
      She indicated Medrano-Rodriguez had his backpack in his
      possession during [processing] (Border Patrol agents had not
      discovered the drugs in the fruit cans at this time). While sitting
      on a bench, Medrano-Rodriguez threatened her by telling her not
      to say anything because she does not know who he is and what he
      can do. Castillo-Ruiz indicated she was fearful of Medrano-
      Rodriguez.
Castillo-Ruiz told the agents that Medrano-Rodriguez had drugs inside the
fruit cans in his backpack. The cans had been welded or soldered closed. When
opened,      agents   discovered   that   each   can   contained   a   bundle    of
methamphetamine wrapped in cellophane. The DEA determined that the



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                                    No. 14-50376
seized methamphetamine had a net weight of 1.47 kilograms and a purity level
of 99.7 percent.
      Applying the 2012 Sentencing Guidelines, the PSR recommended a base
offense level of 36 pursuant to U.S.S.G. § 2D1.1(a)(5), for an offense involving
500 grams to 1.5 kilograms of “ice.” 1           Among other enhancements not
challenged on appeal, the PSR recommended a two-level increase for making
a credible threat to use violence pursuant to § 2D1.1(b)(2).              The violence
enhancement was based on Castillo-Ruiz’s statement that Medrano-Rodriguez
threatened her about speaking to the agents.
      Medrano-Rodriguez filed written objections to the PSR, challenging,
inter alia, the violence enhancement. He argued that § 2D1.1(b)(2) did not
apply to the threat he made after he was in the custody of the Border Patrol,
that the statement was not a threat to use violence, and that it was not a
credible threat. 2
      At sentencing, the district court overruled Medrano-Rodriguez’s
objections. The court adopted the PSR, and determined that the advisory
guidelines range was 292 to 365 months. Medrano-Rodriguez requested a
downward variance, which the district court granted. The court sentenced
Medrano-Rodriguez to a below-guidelines sentence of 188 months of
imprisonment and five years of supervised release.                Medrano-Rodriguez
appeals his sentence.
                                    II. Analysis
      We review the district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. United States v.



      1 Note (C) to the § 2D1.1(c) Drug Quantity Table defines “ice” as d-methamphetamine
hydrochloride with a purity of at least 80%.
      2 Medrano-Rodriguez has not raised the latter two issues on appeal, and we do not

address them.
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                                  No. 14-50376
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). On appeal, Medrano-
Rodriguez argues only that his threat of violence is not covered by § 2D1.1(b)(2)
because it was not made “during” a drug trafficking offense.
      U.S.S.G. § 2D1.1, which is applicable to drug trafficking offenses,
provides that a defendant’s offense level is increased by two levels if he “used
violence, made a credible threat to use violence, or directed the use of violence.”
§ 2D1.1(b)(2).    The background commentary to § 2D1.1 provides that
subsection (b)(2) implements § 5 of the Fair Sentencing Act (“FSA”).
§ 2D1.1(b)(2), comment. (backg’d). Section 5 of the FSA directs the Sentencing
Commission to “review and amend the Federal sentencing guidelines to ensure
that the guidelines provide an additional penalty increase of at least 2 offense
levels if the defendant used violence, made a credible threat to use violence, or
directed the use of violence during a drug trafficking offense.” FSA, Pub. L.
No. 111-220, § 5, 124 Stat. 2372. Accordingly, in amending § 2D1.1 to create
the violence enhancement, the Commission explained that § 2D1.1(b)(2) was a
new specific offense characteristic that implemented § 5 of the FSA.
Supplement to the 2010 Guidelines Manual, App. C, Amend. 748, at 43 (Nov.
1, 2010) (quoting § 5 of the FSA).
      Medrano-Rodriguez      argues    that   Congress      and   the   Sentencing
Commission limited the application of § 2D1.1(b)(2) to the use or threatened
use of violence “during a drug trafficking offense,” even though the text of
§ 2D1.1(b)(2) does not contain such a textual limitation. He argues that he did
not make a threat “during” the drug trafficking offense, but instead made the
threat after he was in custody.
      We need not address the many legal and factual technicalities of this
argument, because Medrano-Rodriguez’s argument fails by its own terms.
Even if we were to accept his argument that the history of § 2D1.1(b)(2) and
the commentary to the Guidelines amendment limit the violence enhancement
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                                 No. 14-50376
to defendants who used or threatened violence “during a drug trafficking
offense,” the enhancement was properly applied here. The PSR is clear that
Medrano-Rodriguez made the threat while he still had the backpack
containing the undetected methamphetamine. The fact that he was in custody
for an immigration violation or on possible suspicion of a different offense does
not alter our conclusion. Medrano-Rodriguez continued to possess the drugs
after his apprehension by the Border Patrol, and he threatened Castillo-Ruiz
in an attempt to avoid detection of his drug trafficking offense. Thus, the
threat occurred “during a drug trafficking offense” according to any reasonable
construction of the term. The district court correctly applied § 2D1.1(b)(2).
                               III. Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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