     Case: 10-10570     Document: 00511708744         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                      No. 10-10570
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee

v.

TERRENCE FARRIS,

                                                         Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CR-3-1


Before JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District
Judge.*

PER CURIAM:**
        This appeal is brought by Terrence Farris challenging two aspects of his
sentencing: a two-level enhancement for weapons possession in connection with
the offense of conviction, U.S.S.G. Section 2D1.1(b)(1); and an upward departure
by the district court, based on the inadequacy of his criminal history score, to the



        *
         District Judge of the United States District Court for the Eastern District of Texas,
sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10570   Document: 00511708744      Page: 2   Date Filed: 12/28/2011




                                 No. 10-10570

statutory maximum of 240 months imprisonment. Finding neither error of fact
nor law, nor abuse of discretion, we affirm.
      Concerning the firearm issue, which is an aspect of “relevant conduct” for
sentencing purposes, this court has held that “sentencing courts may hold a
defendant accountable for a co-defendant’s reasonably foreseeable possession of
a firearm during the commission of a narcotics trafficking offense . . . .” United
States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). The district
court found here that an older man stood guard with a firearm in his pocket on
35-40 occasions while a confidential informant purchased cocaine from Farris.
Farris offered no evidence to challenge the government’s presentation at
sentencing. He now contends that the evidence was too attenuated as to his
knowledge of the .38 handgun and was based on inadmissible or constitutionally
impermissible evidence. These arguments are meritless. First, because the
government was only required to show that the older man’s possession of the gun
was “reasonably foreseeable” to Farris in connection with his drug sales, United
States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010), the court could have
easily inferred as much from the abundant evidence at sentencing. Second,
Farris’s objections to the evidence–Booker, confrontation, and cross-
examination–are foreclosed under Fifth Circuit precedents. The court properly
heard testimony from the case agent concerning the informant’s experiences
with Farris. United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001)
(internal citations omitted).
      In a brief argument challenging only the substantive reasonableness of the
district court’s upward departure, Farris points out that his sentence is about
25% above the upper applicable guideline range (151-188 months) and “seem[s]


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                                 No. 10-10570

to be based on only misdemeanor marijuana possessions and consideration of the
mere fact of prior arrests.” Contrary to this complaint, the district court’s
thorough explanation of its reason for departing did not include prior arrests.
It did, however, rely on Farris’s twenty-year pattern of criminal conduct dating
from when he was seventeen, including three felony drug convictions, multiple
marijuana misdemeanor convictions, and two drug offenses dismissed after
Farris admitted guilt. Despite this record, the court noted, Farris “kept going.”
On this basis, the court found that his criminal history for sentencing purposes,
which did not count all of these offenses, seriously under-represented the
likelihood that he would commit additional crimes. Although the departure is
high in terms of months, it is not extraordinary from a percentage standpoint in
our caselaw. See, e.g., United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.
2005); United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir. 1994). Accordingly,
the court's upward departure was reasonable in light of the reasons articulated
for it and, therefore, was not an abuse of discretion. U.S.S.G. § 4A1.3; United
States v. Lambert, 984 F.2d 658, 664 (5th Cir. 1993) (en banc).
      For these reasons, the sentence is AFFIRMED.




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