     Case: 13-11396      Document: 00512881175         Page: 1    Date Filed: 12/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-11396
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 23, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

AGNE VASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-392-5


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Agne Vasquez was convicted of conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine and
distribution and possession with intent to distribute 50 grams or more of
methamphetamine; he later pleaded guilty to possession of a firearm by an
illegal alien.   The district court sentenced Vasquez within the applicable




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11396    Document: 00512881175     Page: 2   Date Filed: 12/23/2014


                                 No. 13-11396

guidelines range to concurrent terms of imprisonment of 292 months as to the
methamphetamine offenses and 120 months as to the firearms offense.
      Vasquez contends that the evidence is insufficient to prove that he was
a knowing participant in the conspiracy to possess with intent to distribute a
controlled substance. Because Vasquez moved for a judgment of acquittal at
the close of the evidence, we review sufficiency de novo, see United States v.
Garcia-Gonzalez, 714 F.3d 306, 313 (5th Cir. 2013), under the familiar
“rational trier of fact” standard, see United States v. Zamora, 661 F.3d 200, 209
(5th Cir. 2011).
      To prove that a defendant conspired to possess with intent to distribute
a controlled substance, the Government must prove: (1) the existence of an
agreement between two or more persons to violate narcotics laws; (2) the
defendant’s knowledge of the agreement; and (3) his voluntary participation in
the conspiracy. United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).
Vasquez disputes only whether he knew of and voluntarily participated in the
conspiracy.
      The totality of the evidence at trial was sufficient for a reasonable trier
of fact to conclude that Vasquez was a knowing participant in the conspiracy.
The evidence included the following: (1) an undercover officer testified that
Vasquez was present during the first covert drug transaction and appeared to
be interested in what was going on; (2) two conspirators, Tony Hernandez—
the leader of the organization and Vasquez’s cousin who lived across the street
from him—and Johnny Gamez, testified that Vasquez regularly sold the
organization’s methamphetamine to a known user, “Flaco”; (3) Vasquez
negotiated a drug transaction with Flaco in an intercepted cellphone call,
during which he referenced a debt Flaco owed from a prior purchase;
(4) Vasquez sent conspirator Miguel Quintero—his cousin who resided with



                                       2
    Case: 13-11396     Document: 00512881175        Page: 3   Date Filed: 12/23/2014


                                  No. 13-11396

him—a text message, which an agent testified included coded references to
drugs; (5) officers executing a search warrant of Vasquez’s residence discovered
an arsenal of firearms (the majority of which were loaded), high-capacity
magazines, and ammunition in the house, including Vasquez’s bedroom; and
(6) the undercover officer testified that Vasquez provided security and counter-
surveillance during another covert drug transaction, which involved nearly
$10,000 of methamphetamine and which took place in Vasquez’s driveway.
Taken together and viewed in the light most favorable to the verdict, the
totality of the evidence was sufficient for a rational juror to conclude Vasquez
conspired to possess with intent to distribute methamphetamine. See Zamora,
661 F.3d at 209.
      Next, Vasquez challenges the procedural reasonableness of his sentence.
In this vein, he first argues that the district court erred in failing to find that
he was a minor participant in the criminal activity and thus qualified for a
minor role adjustment under U.S.S.G. § 3B1.2. Whether a defendant is a minor
participant is a factual determination reviewed for clear error. United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      As an initial matter, Vasquez was held accountable for only the amount
of methamphetamine ice purchased during the two transactions in which he
provided security and counter-surveillance and during another transaction
involving Flaco. His role in this offense thus was “coextensive with the conduct
for which [he] was held accountable.” United States v. Garcia, 242 F.3d 593,
598-99 (5th Cir. 2001). Moreover, Vasquez provided protection and counter-
surveillance for drug transactions; maintained security cameras at several
locations related to the conspiracy, including the stash house; maintained an
arsenal   of   weapons      at   his   residence;     and     directly   distributed
methamphetamine. Based on the record as a whole, the district court did not



                                        3
    Case: 13-11396     Document: 00512881175       Page: 4   Date Filed: 12/23/2014


                                  No. 13-11396

clearly err in denying Vasquez a minor role adjustment.           See Villanueva,
408 F.3d at 203-04.
      Vasquez next challenges the district court’s application of the
enhancement for possession of a dangerous weapon pursuant to U.S.S.G.
§ 2D1.1(b)(1). He concedes that, during a search of his home, agents found
nine weapons, but he argues that (1) the Government failed to prove that he
used the firearms “in furtherance of” the drug trafficking activity, and (2) the
firearms served a legitimate purpose, i.e., to protect his family. Vasquez’s first
argument is without merit, as the fact that he was acquitted of possessing a
firearm in furtherance of a drug trafficking offense does not bar the district
court from applying this enhancement.           See United States v. Jacquinot,
258 F.3d 423, 431 (5th Cir. 2001). Vasquez’s second argument also falls short
of demonstrating error, as the facts support that the firearms were accessible
to protect the methamphetamine as well as the participants during their illicit
activities. See United States v. Ruiz, 621 F.3d 390, 396-97 (5th Cir. 2010).
Additionally, there was a sufficient temporal and spatial relationship between
Vasquez, the firearms, and the drug trafficking activity. See United States v.
Navarro, 169 F.3d 228, 230, 235 (5th Cir. 1999). As it is not clearly improbable
that the firearms were connected with the offense, see § 2D1.1, comment.
(n.11(A)), the district court did not clearly err. See Ruiz, 621 F.3d at 396-97.
      Next, Vasquez argues that the district court clearly erred in imposing
the two-level enhancement pursuant to § 2D1.1(b)(5), which applies if, as
pertinent here, the offense involved the importation of methamphetamine and
the defendant is not subject to a mitigating role adjustment.             At trial,
Hernandez      testified   that     he       received   kilogram-quantities       of
methamphetamine ice from a source in Mexico; that the drug was
manufactured in Mexico; and that the drugs Vasquez sold to Flaco originated



                                         4
    Case: 13-11396     Document: 00512881175    Page: 5   Date Filed: 12/23/2014


                                 No. 13-11396

from Hernandez. Accordingly, Vasquez has not shown that the district court
erred in applying the importation enhancement. See United States v. Foulks,
747 F.3d 914, 915 (5th Cir.), cert. denied, 2014 WL 3509481 (Oct. 6, 2014)
(No. 14-5236).
      Turning to the substantive reasonableness of the sentence, Vasquez
suggests for the first time on appeal that, at the December 2013 sentencing
hearing, the district court should have varied from the guidelines range in light
of the United States Sentencing Commission’s May 2014 recommendation for
a two-level reduction in the base offense levels in the Drug Quantity Table in
§ 2D1.1.    This argument is unavailing, as the proposed change to the
Guidelines was not in effect at the time of sentencing; indeed, it had not yet
been recommended. See United States v. Martin, 596 F.3d 284, 286 (5th Cir.
2010); U.S.S.G. § 1B1.11(a).
      Vasquez further contends that the district court failed to consider all his
arguments and the 18 U.S.C. § 3553(a) factors. The district court indicated
that it had considered all the § 3553(a) factors and that it had reviewed the
facts of the case and Vasquez’s individual circumstances in determining a
sufficient sentence.    Further, Vasquez’s argument that his sentence is
substantively unreasonable because the methamphetamine Guidelines lack an
empirical basis is unavailing.    See United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009). Finally, Vasquez has not shown the
existence of any unwarranted disparity between his sentence and those of any
similarly situated methamphetamine offenders or any of his co-defendants. In
sum, Vasquez has not rebutted the presumption of reasonableness that
attaches to his within-guidelines-range sentence. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.



                                       5
