     Case: 10-20256 Document: 00511334861 Page: 1 Date Filed: 12/29/2010




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

                                                 FILED
                                                                         December 29, 2010
                                     No. 10-20256
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID ZAVALA, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-543-3


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Zavala, Jr., was convicted of one charge of conspiracy to commit
robbery and was sentenced to serve 46 months in prison and a three-year term
of supervised release. In this appeal, he challenges his sentence, arguing that
the district court erred by determining that he constructively possessed a
firearm during the offense and imposing a corresponding sentencing adjustment.
       When analyzing such challenges, Gall v. United States, 552 U.S. 38, 51
(2007), instructs us to determine whether the sentence imposed is procedurally

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20256 Document: 00511334861 Page: 2 Date Filed: 12/29/2010

                                  No. 10-20256

sound, including whether the calculation of the advisory guidelines range is
correct. We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
        Our analysis shows no procedural error in connection with Zavala’s
sentence. Insofar as he argues that the adjustment was improper because the
firearm was possessed by a cooperating individual, this argument is refuted by
the record, which shows another individual also possessed it. To the extent he
contends that he could not have reasonably foreseen the use of a firearm during
the robbery, this assertion is undermined by those portions of the record showing
that the conspirators held a meeting and discussed using a firearm to rob an
armored truck. Additionally, these parts of the record show that the district
court’s conclusion regarding Zavala’s constructive possession of the firearm is
plausible and thus is not clearly erroneous. See Cisneros-Gutierrez, 517 F.3d at
764.
        AFFIRMED.




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