     Case: 15-11092      Document: 00513905176         Page: 1    Date Filed: 03/09/2017




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

                                      No. 15-11092                                   FILED
                                                                                 March 9, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

              Plaintiff - Appellee

v.

JOSE MILTON PUENTES,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:15-CR-79-1


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Jose Milton Puentes challenges the district court’s calculation
of his sentence after pleading guilty to one count of distribution of a controlled
substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We AFFIRM.
                                     I. Background
       In March 2013, reliable confidential sources approached agents from the
Fort Worth office of the Drug Enforcement Administration (“DEA”) about


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Defendant Jose Milton Puentes’s drug distribution activities.           While in
California,   Puentes    sold    the   confidential   sources    a   shipment    of
methamphetamine. That shipment, which contained a total of 416.9 grams of
methamphetamine, was received by DEA agents in Fort Worth, Texas in April
2013.
        Under the direction of the DEA, the confidential sources continued
meeting with Puentes in California throughout 2013.             In May 2014, the
confidential sources advised DEA agents that Puentes had provided them with
1.1 grams of methamphetamine (among other drugs) as samples of the drugs
he had available for purchase.
        DEA agents subsequently executed a search warrant at Puentes’s
California residence in June 2014. During the search, DEA agents seized 440
grams of methamphetamine from a detached storage shed. The agents also
seized a .22-caliber pistol and multiple rounds of ammunition from Puentes’s
bedroom in the residence.       Puentes was detained during the search and
released afterwards, pending further investigation.
        Puentes was subsequently named in a one-count indictment filed in the
Northern District of Texas on April 15, 2015. The indictment charged Puentes
with distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). According to the indictment, at the time he made the shipment
to DEA agents in April 2013, Puentes knowingly and intentionally possessed
with intent to distribute fifty grams or more of a mixture or substance
containing methamphetamine, a Schedule II controlled substance.
        Puentes was contacted by DEA agents in California in May 2015. He
initially entered a plea of not guilty, but withdrew that plea shortly thereafter
and entered a plea of guilty.      Puentes’s presentence investigation report
(“PSR”) determined that Puentes was accountable for a total of 858 grams of
methamphetamine, which resulted in a base offense level of thirty-four. The
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PSR then recommended four two-level enhancements. Relevant to Puentes’s
appeal, the PSR recommended an enhancement pursuant to United States
Sentencing Guideline § 2D1.1(b)(1) because Puentes possessed a firearm. The
resulting total offense level was forty-two, which, based on Puentes’s criminal
history category of I, resulted in a Guideline imprisonment range of 360
months to life. That range was then limited by the statutorily authorized
maximum sentence of forty years to create a final Guideline range of 360 to
480 months. 21 U.S.C. § 841(b)(1)(B)
      Puentes filed a series of objections to both the base offense level and the
various enhancements.       Among his arguments, Puentes disputed the
connection between the firearm discovered during the June 2014 search and
the April 2013 shipment of methamphetamine. Puentes further argued that
the firearm was not connected with the discovery of methamphetamine during
the June 2014 search as the drugs were in a separate building from the
firearm, the firearm was not on Puentes’s person, and the firearm was
unloaded and stored.
      At his sentencing hearing, Puentes argued that there was no proof that
a firearm was present during the commission of the offense of conviction (the
April 2013 shipment) and that there was no evidence that drug trafficking
activity took place at the residence. Counsel for Puentes explained that the
firearm was not in the same place as the methamphetamine. Overruling the
objections, the district court found both that drug transactions occurred at the
residence and that there was a presumption that the firearm was used to
protect Puentes’s drug activities.
      The district court sentenced Puentes to 360 months of imprisonment and
a four-year term of supervised release.        Despite having overruled all of
Puentes’s objections, the district court noted that its sentence was “the
sentence the Court would impose even if some of those objections had been
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                                  No. 15-11092
sustained because I would be guided by the factors the Court should consider
under the statute, and that’s the sentence I would impose under that
guidance.”     Puentes objected to the sentence as being procedurally and
substantively unreasonable, and filed a timely notice of appeal.
                             II. Standard of Review
      A district court’s determination that an enhancement based on
§ 2D1.1(b)(1) applies is a factual finding reviewed for clear error. United States
v. Romans, 823 F.3d 299, 317 (5th Cir.), cert. denied, 137 S. Ct. 195 (2016). “A
factual finding is not clearly erroneous if it is plausible, considering the record
as a whole.” United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (per
curiam).     “[A] district court is permitted to draw reasonable inferences from
the facts, and these inferences are fact-findings reviewed for clear error as
well.” United States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (quoting United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)).
                                 III. Discussion
      U.S.S.G. § 2D1.1(b)(1) provides for a two-level enhancement to a
defendant’s offense level “[i]f a dangerous weapon (including a firearm) was
possessed.” The Government has the burden “of showing by a preponderance
of the evidence that a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.” United States v.
Salado, 339 F.3d 285, 293–94 (5th Cir. 2003) (citing United States v. Eastland,
989 F.2d 760, 770 (5th Cir. 1993)). To satisfy its burden under this standard,
“the Government must show that the weapon was found in the same location
where drugs . . . are stored or where part of the transaction occurred.” Id. at
294. If such a showing is made, the defendant can avoid enhancement by
demonstrating that “it was clearly improbable that the weapon was connected
with the offense.” Ruiz, 621 F.3d at 396.


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      On appeal, Puentes argues that the district court committed error by
imposing the two-level firearm enhancement because the Government failed
to   establish   any   temporal   or   spatial   connection   with   either   the
methamphetamine shipment or the discovery of methamphetamine at his
residence. His arguments, however, do not demonstrate that the district court
clearly erred in assigning the two-level enhancement. Puentes relies on our
decision in United States v. Vasquez, 874 F.2d 250 (5th Cir. 1989), to argue
that the Government failed to demonstrate a spatial connection between his
offense and the firearm. That case in inapposite. The defendant in Vasquez
was convicted of possession of a controlled substance, not distribution of a
controlled substance. Vasquez, 874 F.2d at 250. Puentes was charged with
distribution of methamphetamine. Puentes’s distribution scheme was ongoing
according to the factual findings of the PSR, which were expressly adopted by
the district court and are not challenged by Puentes on appeal. See United
States v. Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013) (per curiam) (“Generally,
a PSR bears sufficient indicia of reliability to be considered as evidence by the
sentencing judge in making factual determinations.” (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012))). The district court’s statement at
the sentencing hearing that some of the purposes of Puentes’s residence were
to store and sell drugs is similarly unchallenged. This makes the situation in
Vasquez, where a firearm was discovered several miles away from where the
defendant committed the possession offense, materially different from
Puentes’s situation, in which the firearm was found in one location on a
property involved in his distribution offense. Vasquez, 874 F.2d at 251; see also
United States v. Juluke, 426 F.3d 323, 326, 328–29 (5th Cir. 2005) (per curiam)
(upholding § 2D1.1(b)(1) enhancement where weapons were found in home
with a quantity of cash but drugs were found in vehicle in driveway); United
States v. Navarro, 169 F.3d 228, 230, 235 (5th Cir. 1999) (upholding
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§ 2D1.1(b)(1) enhancement where guns were found in house and drugs were
buried in yard).
      The district court’s unchallenged determination that Puentes was
involved in an ongoing distribution scheme similarly undercuts any argument
disputing temporal proximity. Under our precedent, possession of a dangerous
weapon in connection with relevant conduct can support the application of the
enhancement. See Eastland, 989 F.2d at 769. The PSR notes that Puentes
met in May 2014 with the confidential sources to discuss future sales of drugs.
This conduct, along with the district court’s finding of an ongoing distribution
scheme, demonstrates that Puentes’s distribution of methamphetamine
occurred up to the time the firearm was seized.           That is sufficient to
demonstrate temporal proximity.
      The district court did not clearly err in determining that the firearm was
related to the charging offense. As the district court recognized, Puentes
offered no evidence that “it was clearly improbable that the weapon was
connected with the offense.” King, 773 F.3d at 53 (quoting Ruiz, 621 F.3d at
396). We therefore AFFIRM.




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