     Case: 12-10906       Document: 00512370197         Page: 1     Date Filed: 09/11/2013




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

                                                                            FILED
                                                                        September 11, 2013
                                     No. 12-10906
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE JUAN MONTELONGO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-45-2


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges
PER CURIAM:*
       A jury convicted Jose Juan Montelongo of one count of conspiracy to
distribute and possess with intent to distribute methamphetamine and one
count of distribution and possession with intent to distribute methamphetamine.
The district court sentenced Montelongo to concurrent life sentences and to
concurrent five-year terms of supervised release. Montelongo now appeals,
challenging the district court’s calculation of his advisory guidelines sentencing
range.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10906

      We review the district court’s application or interpretation of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A factual finding
is not clearly erroneous if it is plausible in light of the record as a whole. Id.
Many of the district court’s factual findings in this case were based on facts set
forth in the presentence report (PSR) and its addendum. “Generally, a PSR
bears sufficient indicia of reliability to permit the sentencing court to rely on it
at sentencing. The defendant bears the burden of demonstrating that the PSR
is inaccurate; in the absence of rebuttal evidence, the sentencing court may
properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152,
164 (5th Cir. 2009) (internal quotation marks and citation omitted).
      Obstruction of justice
      Section 3C1.1 of the Sentencing Guidelines provides for a two-level
enhancement if the defendant willfully attempted to obstruct or impede the
administration of justice by, inter alia, committing perjury. U.S.S.G. § 3C1.1 &
comment. (nn.1 & 4(B)) (2011). Perjury for purposes of § 3C1.1 is defined as
“false testimony concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake, or faulty memory.”
United States v. Dunnigan, 507 U.S. 87, 94 (1993).
      Montelongo contends that the district court did not make the necessary
predicate factual findings of perjury to uphold the enhancement. We review this
challenge only for plain error because it is raised for the first time on appeal.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); cf.
United States v. Johnson, 352 F.3d 146, 149 n.2 (5th Cir. 2003) (plain error
review not applicable where appellant did not challenge specificity of fact
findings, but findings were inadequate).         The district court found that
Montelongo testified falsely at trial that the reason he placed an advertisement
on Craig’s List referencing “ice skating” was to find other methamphetamine-
using sexual partners for his swinging lifestyle when he and his wife had run out

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of drugs.     According to Montelongo, his wife would refuse to engage in
intercourse with the people who responded to the advertisement but those people
would nevertheless stay and share their drugs with the Montelongos. The
district court found that this testimony was material because it went to the issue
of guilt or innocence and that it had been given willfully in an attempt to
obstruct justice. The district court’s findings concerning Montelongo’s testimony
were sufficient, see Dunnigan, 507 U.S. at 94; United States v. Perez-Solis, 709
F.3d 453, 469-71 (5th Cir. 2013), and Montelongo has failed to demonstrate
error, plain or otherwise, in this respect.
        Stating that the record supports the veracity of his account of his reason
for placing the Craig’s List advertisement, Montelongo argues that the district
court erred in finding that he testified falsely. In light of testimony by a man
who answered the advertisement that he went to Montelongo’s home and that
Montelongo met him in the driveway to sell him methamphetamine, the district
court’s factual finding is not clearly erroneous. See Cisneros-Gutierrez, 517 F.3d
at 764. Nor did the district court clearly err in determining that the testimony
was material since the drug sales to the man who answered the advertisement
were the only sales that were not the subject of Montelongo’s asserted
affirmative defense of entrapment. See United States v. Como, 53 F.3d 87, 89-90
(5th Cir. 1995). Montelongo does not challenge the determination that his
testimony did not result from confusion, mistake, or faulty memory and was thus
given willfully to obstruct justice. Because the district court’s factual findings
are plausible in light of the record and because the court made sufficient
predicate findings, the application of the two-level enhancement under § 3C1.1
will be upheld. See Perez-Solis, 709 F.3d at 469; Cisneros-Gutierrez, 517 F.3d at
764.
        Firearm possession
        Montelongo’s offense level was increased by two levels pursuant to
§ 2D1.1(b)(1) based on the presence of a firearm found in a safe in the master

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bedroom of Arthur Luna, one of Montelongo’s drug suppliers. To apply this
enhancement based on Montelongo’s vicarious possession, the Government had
to show by a preponderance of the evidence that Luna possessed the firearm in
connection with the conspiracy in which he and Montelongo participated and
that Montelongo could have reasonably foreseen that Luna would possess a
weapon in furtherance of their jointly undertaken criminal activity.        See
§ 1B1.3(a)(1)(B); United States v. Zapata-Lara, 615 F.3d 388, 390-91 (5th Cir.
2010); United States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).
      With respect to possession, we will not consider Montelongo’s contention
that the Government did not prove that Luna knowingly possessed the weapon
because it is raised for the first time in Montelongo’s reply brief. See United
States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). Montelongo argues that
the Government did not show that necessary spatial relationship between Luna’s
possession of the firearm and the drug trafficking offense because there was no
evidence that Luna had ever stored drugs or drug paraphernalia in his home,
much less in the bedroom closet safe where the gun was found. However, the
Government may prove the requisite spatial relationship by showing that the
firearm was found “in the same location where drugs or drug paraphernalia are
stored or where part of the transaction occurred.” Zapata-Lara, 615 F.3d at 390
(emphasis added). On the day that the gun was discovered inside Luna’s house,
Luna had brokered a deal in which Montelongo retrieved a half-pound of
methamphetamine from a vehicle parked in front of Luna’s house. This was
sufficient to establish a spatial relationship between the drug trafficking
conspiracy, the firearm, and Luna. See United States v. Juluke, 426 F.3d 323,
326, 328 (5th Cir. 2005); United States v. Navarro, 169 F.3d 228, 230, 235 (5th
Cir. 1999). Whether the firearm was loaded, or even whether it was operable,
is not dispositive. See United States v. Jacquinot, 258 F.3d 423, 431 (5th Cir.
2001); United States v. Caicedo, 103 F.3d 410, 411-12 (5th Cir. 1997); United
States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994). Luna’s possession of the

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firearm was or should have been foreseeable to Montelongo, see United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990), and Montelongo makes no
argument otherwise. Under these facts, the district court did not err in its
application of the § 2D1.1(b)(1) enhancement.
      Role in the offense
      The district court increased Montelongo’s offense level by four levels under
§ 3B1.1(a), which applies where “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” § 3B1.1(a). Montelongo concedes that, with regard to the conspiracy
count, he exercised a supervisory role over his wife and over Jose Castillo. He
maintains that the PSR had to have counted Luna and Joshua Baggett as the
fourth and fifth participants for purposes of the enhancement. Montelongo
argues, however, that Luna and Baggett should not be considered participants
because he had only a buyer/seller relationship with those two men. The
original indictment in this case charged Montelongo, his wife, Castillo, Luna,
and Baggett with the same conspiracy for which Montelongo was convicted.
Montelongo’s wife, Luna, and Baggett all pleaded guilty to that conspiracy
charge. To be counted as a participant for purposes of § 3B1.1(a), an individual
“need only have participated knowingly in some part of the criminal enterprise.”
United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994). As Luna and Baggett
were Montelongo’s coconspirators, the district court’s finding that they were
participants in the criminal activity here is plausible and, thus, not clearly
erroneous. See Cisneros-Guttierez, 517 F.3d at 764. Accordingly, the district
court properly applied § 3B1.1(a).
      Importation
      The district court applied a two-level increase to Montelongo’s offense level
because the offense involved the importation of methamphetamine and
Montelongo was not entitled to a mitigating role adjustment. See § 2D1.1(b)(5).
The enhancement was based on a statement in the addendum to the PSR that

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an agent with the Drug Enforcement Administration (DEA) had confirmed by
interviewing a confidential informant (CI) who was one of the sources of supply
for Luna, and thus for Montelongo, that some of the methamphetamine involved
in this case had come from Mexico. When Montelongo objected to the reliability
of this information given that neither the DEA agent nor the CI were named in
the addendum to the PSR, the Government responded that the relevant agent
would be present at sentencing. At sentencing, however, Montelongo did not
question the agent. Montelongo argues in this court that the Government failed
to prove the fact of importation and that the statement contained in the PSR is
not sufficiently reliable to be relied upon by the district court in applying the
§ 2D1.1(b)(5) enhancement. The PSR and its addendum were based on, inter
alia, investigative reports of the DEA and other law enforcement officers,
interviews with a DEA agent, and statements of witnesses; they set forth specific
facts rather than bald conclusions. See United States v. Elwood, 999 F.2d 814,
817-18 (5th Cir. 1993).    Thus, absent rebuttal evidence or a showing by
Montelongo that the PSR was unreliable, the district court was permitted to rely
on those findings. See Ollison, 555 F.3d at 164.
      Maintaining a premises for storing or distributing drugs
      Montelongo also received a two-level enhancement under § 2D1.1(b)(12),
which “applies to a defendant who knowingly maintains a premises . . . for the
purpose of” manufacturing, distributing, or storing a controlled substance.
§ 2D1.1(b)(12) & comment. (n.28). The record in this case shows that when
Montelongo received methamphetamine from Luna or Baggett, it was stored in
a safe in his bedroom closet. Castillo had unfettered access to Montelongo’s
home. On one occasion, Montelongo sold methamphetamine to a customer from
his home, and on another occasion he had Castillo retrieve methamphetamine
from the Montelongo residence to sell to that same customer. Additionally, Luna
supplied a half-pound of methamphetamine to Montelongo’s wife who, along
with their minor daughter, used the home to break the methamphetamine up

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into smaller amounts for distribution. Finally, a search of the Montelongo’s
bedroom safe revealed 18.9 grams of 99.1% pure methamphetamine, small
plastic baggies, and a scale.
      According to Montelongo, the district court erred in applying this
enhancement because the record showed that his house was primarily used as
his family’s residence. For the enhancement to be applicable, however, the
storing or distribution of a controlled substance “need not be the sole purpose for
which the premises was maintained.” § 2D1.1, comment. (n.28). It is sufficient
that such storage or distribution was “one of the . . . primary or principal uses
for the premises.” Id. Under the facts of this case, it is plausible that storing or
distributing methamphetamine was a principal use, rather than an incidental
use, of the Montelongo residence. See id. Accordingly, the district court did not
clearly err in determining that distribution of a controlled substance was a
primary use of the residence, see Cisneros-Gutierrez, 517 F.3d at 764, and the
application of the § 2D1.1(b)(12) enhancement was proper.
      AFFIRMED.




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