     Case: 12-40073     Document: 00512025062         Page: 1     Date Filed: 10/18/2012




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

                                                                            FILED
                                                                         October 18, 2012
                                     No. 12-40073
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS ORLANDO REYES-CUELLAR,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1003-2


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Luis Orlando Reyes-Cuellar appeals the 108-month sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute five kilograms or more of cocaine. Reyes-Cuellar argues that the
district court clearly erred in applying a two-level adjustment for possession of
a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). He contends that there was
insufficient evidence to show that the firearms recovered from the stash house
were possessed in connection with the offense or that he should have reasonably

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40073    Document: 00512025062      Page: 2    Date Filed: 10/18/2012

                                  No. 12-40073

foreseen that a dangerous weapon would be possessed. Reyes-Cuellar further
contends that the district court failed to make proper findings to support the
application of the enhancement.
      This court generally reviews a district court’s interpretation or application
of the Guidelines de novo and its factual findings for clear error. United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There is no clear error
if the district court’s finding is plausible in light of the record as a whole.” Id.
(internal quotation marks and citation omitted).
      Section 2D1.1 should be applied “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.” § 2D1.1,
comment. (n.3).     A defendant may be held responsible for “all reasonably
foreseeable acts” of others taken “in furtherance of . . . jointly under criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Mergerson, 4 F.3d
337, 350 (5th Cir. 1993). There is ample evidence that Reyes-Cuellar and his
coconspirator were jointly engaged in the crime of possession with intent to
distribute a large amount of cocaine. It was thus reasonably foreseeable that the
coconspirator would possess a dangerous weapon at a stash house known to be
“utilized to store large quantities of narcotics.” See United States v. Thomas, 120
F.3d 564, 574 (5th Cir. 1997); Mergerson, 4 F.3d at 350. The record reflects that
the district court considered the arguments presented by Reyes-Cuellar and
adopted the presentence report’s facts regarding the dangerous weapon
enhancement. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010);
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). Reyes-Cuellar has
failed to show that the district court clearly erred in applying the firearm
enhancement to his sentence. See Cisneros-Gutierrez, 517 F.3d at 764. The
judgment of the district court is therefore AFFIRMED.




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