     Case: 18-10468      Document: 00515011404         Page: 1    Date Filed: 06/26/2019




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

                                    No. 18-10468                          FILED
                                  Summary Calendar                    June 26, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE SOTO-SILVA, also known as “Feo”,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-216-2


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Jose Soto-Silva pleaded guilty to conspiracy to possess with intent to
distribute a controlled substance. In calculating Soto-Silva’s sentence, the
district court imposed a two-level enhancement because Soto-Silva had
possessed a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). The district court
also imposed a two-level enhancement because Soto-Silva maintained
premises for storing marijuana.           See U.S.S.G. § 2D1.1(b)(12).                Soto-Silva


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10468

objected to these enhancements. The district court overruled the objections
and imposed 240 months of imprisonment, a downward variance from the
recommended guidelines sentence.
      Soto-Silva argues that the § 2D1.1(b)(1) enhancement was erroneously
applied because the Government failed to establish a temporal and spatial
relationship between himself, a firearm, and the charged drug trafficking
activity. We review de novo the district court’s legal interpretation of the
Sentencing Guidelines. United States v. Romans, 823 F.3d 299, 317 (5th Cir.
2016). The district court’s determination that the § 2D1.1(b)(1) enhancement
applies is a factual finding that we review for clear error. Id. The Guidelines
provide for a two-level enhancement “[i]f a dangerous weapon (including a
firearm) was possessed” during a drug trafficking offense. § 2D1.1(b)(1). The
commentary to § 2D1.1 explains that this enhancement “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.11(A)). Soto-Silva does not
dispute the factual findings in the PSR that the pistol was found in his bedroom
along with $12,466 in cash. He also does not dispute that 19.36 kilograms of
marijuana, drug scales, and other drug paraphernalia were found in another
bedroom of the house. Soto-Silva has presented no evidence to show that “it is
clearly improbable that the weapon was connected with the offense.” § 2D1.1,
comment. (n.11(A)). Accordingly, he has failed to show clear error with respect
to application of the firearm enhancement. See Romans, 823 F.3d at 317.
      He also argues that the district court erred in applying an enhancement
for maintaining a drug premises at 1230 Mars Drive. The district court’s
“application of § 2D1.1(b)(12) is also a factual finding we review for clear error.”
United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). Section 2D1.1(b)(12)
authorizes a two-level enhancement if the defendant “maintained a premises



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for the purpose of manufacturing or distributing a controlled substance.” The
application notes for this Guideline explain that the enhancement “applies to
a defendant who knowingly maintains a premises (i.e., a building, room, or
enclosure) for the purpose of manufacturing or distributing a controlled
substance, including storage of a controlled substance for the purpose of
distribution.” § 2D1.1, comment. (n.17). Based on the undisputed evidence,
the district court did not clearly err in applying the § 2D1.1(b)(12)
enhancement because its conclusion that one of the primary uses of Soto-
Silva’s residence was for the distribution of drugs is plausible in light of the
record as a whole.
      AFFIRMED.




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