     Case: 10-40300 Document: 00511470266 Page: 1 Date Filed: 05/09/2011




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

                                                 FILED
                                                                             May 9, 2011
                                       No. 10-40300
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

MIRIAM CASTILLO-CORPUS,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:08-CR-1680




Before SMITH, DeMOSS, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Miriam Castillo-Corpus appeals the determination that she is ineligible
for the safety-valve reduction under U.S.S.G. § 5C1.2(2) because she construc-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40300

tively possessed a firearm. We find no error and affirm.


                                        I.
      A confidential informant contacted United States Immigration and Cus-
toms Enforcement officers and told them that Castillo-Corpus’s residence, a
modified trailer house, was being used as a “stash house” for illegal drugs. The
government had seized sixty-seven pounds of marihuana from her residence just
a few months before and knew that her ex-husband and former boyfriend were
involved in drug trafficking and money laundering. In addition, the body of Cas-
tillo-Corpus’s close male friend was found riddled with bullets and stab wounds.
      While on surveillance outside a warehouse, agents saw Castillo-Corpus
drive past them along with a male whom Castillo-Corpus later identified as her
cousin “Chaparro.” The agents then drove past Castillo-Corpus’s house, where
they observed her pouring liquid bleach onto the front porch and driveway. The
agents returned there afterward, but she had left. The agents then drove to a
known relative’s residence, where they found her.
      Castillo-Corpus “broke down” and admitted that marihuana was stored at
her trailer house and that she was present when it was unloaded. She also told
officers that there was a firearm in her living room and that it was loaded. She
claimed that the weapon belonged to Chaparro, however.
      Officers obtained and executed a search warrant on the house, where they
found a loaded .380 firearm on a chair in plain view by a table in the living room.
The living room was located between two bedrooms in which officers found a
combined 149 bricks of marihuana weighing about 3,278 pounds.
      Castillo-Corpus was charged with aiding and abetting the possession with
intent to distribute of more than 1000 kilograms of marihuana in violation of 18
U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). She pleaded guilty. In ex-
change, the government agreed to recommend a two-level reduction for accep-

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                                       No. 10-40300

tance of responsibility under U.S.S.G. § 3E1.1(a).


                                              II.
       The district court found that Castillo-Corpus merited a sentence of 70-87
months under the sentencing guidelines, but it sentenced her to the mandatory
minimum of 120 months. Castillo-Corpus sought a sentence below the manda-
tory minimum pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2’s safety-
valve provision, but the government argued that she was ineligible for the re-
duction because she possessed the firearm found in her house. Castillo-Corpus
argued that the firearm belonged to Chaparro, not her, that Chaparro left it in-
side her house before the two of them departed, and that she never re-entered
the house or otherwise had access to the weapon.
       The court found that Castillo-Corpus constructively possessed the firearm
in connection with her offense. It noted that the firearm was in the “heart” of
her house. She knew “massive quantities” of marihuana were being stored
there. She was the “stash house operator.” She was observed pouring bleach
outside the house before she was apprehended. And she told the officers about
the firearm and was knowingly present in the house when the gun and marihua-
na were there. Accordingly, the court held that Castillo-Corpus was ineligible
for the § 5C1.2 safety-valve reduction.


                                             III.
       We review a legal interpretation of § 5C1.2 de novo1 and a sentencing
court’s application of § 5C1.2 to the facts of the case for clear error. Flanagan,
80 F.3d at 145 (citing Rodriguez, 60 F.3d at 195 n.1). For a factual finding not


       1
         United States v. Flanagan, 80 F.3d 143, 145 (5th Cir. 2006); see United States v. Rod-
riguez, 60 F.3d 193, 195 n.1 (5th Cir. 1995) (“We review the legal interpretation of the Sen-
tencing Guidelines de novo.”).

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                                        No. 10-40300

to be clear error, it need only be “plausible in light of the record as a whole.”
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
       Title 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 provide that the mandatory
minimum sentence shall not apply if the defendant satisfies certain require-
ments, one of which is that he “did not . . . possess a firearm . . . in connection
with the offense.” Castillo-Corpus argues that she did not constructively possess
the firearm found in her house because it belonged to Chaparro and she had no
“realistic access” to it. The defendant bears the burden of proving by a prepon-
derance of the evidence that she did not possess the firearm for § 5C1.2 purpos-
es. United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
       There is a tension in our caselaw with respect to the appropriate legal
standard to apply to determine constructive possession under § 5C1.2. Some of
our decisions imply that, as with § 2D1.1(b)(1) of the sentencing guidelines, a de-
fendant constructively possesses a firearm under § 5C1.2 if there is a “temporal
and spatial relation . . . between the weapon, the drug trafficking activity, and
the defendant” and it is not “clearly improbable that the firearm[] [was] connect-
ed to his offense.”2 We have also found constructive possession under § 5C1.2(2)


       2
         See United States v. Ordonez, 286 F. App’x 224, 233-34 (5th Cir. 2008) (per curiam)
(affirming the district court’s refusal to apply the § 5C1.2 safety valve, because it “did not err
in finding that [the defendant] possessed a gun for the purposes of § 2D1.1(b)(1)”); United
States v. Martinez, 111 F. App’x 341, 342 (5th Cir. 2004) (per curiam) (same); United States
v. Sanchez-Vasquez, 70 F. App’x 187, 188-89 (5th Cir. 2003) (per curiam) (interpreting § 2D1.1-
(b)(1) and § 5C1.2(2) analogously to hold that the defendant constructively possessed a fire-
arm); Vasquez, 161 F.3d at 911-13 (per curiam) (holding that, “despite any difference in se-
mantics between § 2D1.1(b)(1) and § 5C1.2(2),” § 5C1.2(2)’s“in connection with the offense”
requirement should be interpreted “analogously” to § 2D1.1(b)(1)’s “possession” language, but
leaving open the possibility that § 5C1.2 and § 2D1.1 should not be interpreted the same for
all purposes, “including whether another’s actions can be attributed to the defendant”); United
States v. Myers, 150 F.3d 459, 465 (5th Cir. 1998) (“The district court . . . [found] that Myers
knew about, and possessed, the rifle in the course of the conspiracy. We therefore affirm the
two-level firearm enhancement [under § 2D1.1(b)(1)] and necessarily affirm the district court’s
finding that Myers was not eligible for the ‘safety valve’ provision of U.S.S.G. § 5C1.2(2).” (em-
phasis added)); United States v. Flucas, 99 F.3d 177, 178-79 (5th Cir. 1996) (per curiam) (“Flu-
                                                                                    (continued...)

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                                         No. 10-40300

by relying on language from our cases involving standalone possession offenses,
viz. whether the defendant has “ownership, dominion or control over the [fire-
arm] . . . or dominion or control over the premises in which the [firearm] is con-
cealed.”3 We have never determined whether our holdings with respect to the
legal standard for joint constructive possession of a weapon applicable to stand-
alone possession offenses also apply to § 5C1.2(2).4 Because neither the district
court nor the parties addressed that strain in the jurisprudence, however, and
because Castillo-Corpus possessed a firearm regardless of which standard we ap-
ply, we decline to resolve the issue, even if, as a panel, we had the authority to
do so. The district court’s finding that Castillo-Corpus possessed a firearm in
connection with her offense is plausible and therefore not clear error.
       Constructive possession “need not be exclusive[;] it may be joint with oth-
ers.” United States v. Fambro, 526 F.3d 836, 839 (5th Cir. 2008). The gun was
found in plain view in the living room of Castillo-Corpus’s house, outside of
which officers saw her pouring bleach onto her porch and driveway when it
appears no one else was there. Based on her testimony to officers after she
“broke down,” Castillo-Corpus not only knew that the firearm was in the house


       2
         (...continued)
cas argues that it was error to adjust his sentence by two levels for possession of a firearm
[pursuant to § 2D1.1(b)(1)]. The finding that Flucas possessed a weapon is also significant be-
cause it disqualified Flucas from being eligible for the ‘safety valve’ provision . . . .”).
       3
         See United States v. Matias, 465 F.3d 169, 173 (5th Cir. 2006) (quoting United States
v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996)).
       4
          For example, we have held that, under 18 U.S.C. § 922(g)(1), when “two or more per-
sons jointly occupy the place where a firearm is found, mere control or dominion of that place
is, by itself, insufficient to establish constructive possession.” Fields, 72 F.3d at 1212. If there
is joint occupancy, the prosecution must show “access to and knowledge” of the weapon. Id.
But cf. Sanchez-Vasquez, 70 F. App’x at 188-89 (holding that, under U.S.S.G. § 2D1.1(b)(1),
“‘neither the sentencing guidelines nor the case law requires that the Government prove a de-
fendant had knowledge of a weapon’s existence’” and concluding that because the defendant
possessed a weapon under § 2D1.1(b)(1), he possessed a weapon under § 5C1.2(2) (quoting Flu-
cas, 99 F.3d at 179)).

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                                  No. 10-40300

but knew it was loaded. Her argument that the gun belonged to Chaparro and
that she never had access to it is nothing more than that: an argument; the only
evidence to support it is her self-serving testimony. Therefore, the district court
did not clearly err in finding that Castillo-Corpus failed to prove by a preponder-
ance of the evidence that she did not possess the weapon. The judgment of con-
viction is AFFIRMED.




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