     Case: 14-40247       Document: 00512887142         Page: 1     Date Filed: 12/31/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40247
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         December 31, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

LEONCIO DE LA PAZ-BRITO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-244-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Leoncio De La Paz-Brito challenges: the sufficiency of the evidence
supporting his conviction for conspiring to possess, with intent to distribute,
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) (criminalizing the
manufacture and sale of, inter alia, methamphetamine) and 846 (conspiracy
provision); and the imposition of a two-level enhancement, pursuant to




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-40247     Document: 00512887142      Page: 2   Date Filed: 12/31/2014


                                  No. 14-40247

Sentencing Guideline § 2D1.1(b)(1), for possessing a firearm in connection with
the underlying offense.
      For properly preserved sufficiency-of-the-evidence claims, as in this
instance, the evidence is viewed “in the light most favorable to the jury
verdict”, and we “must affirm if a rational trier of fact could have found that
the evidence established the essential elements of the offense beyond a
reasonable doubt”. E.g., United States v. Winkler, 639 F.3d 692, 696 (5th Cir.
2011) (citation omitted).     “All credibility determinations and reasonable
inferences from the evidence are to be resolved in favor of the jury verdict.” Id.
(citation omitted).
      “To prove conspiracy to possess and distribute a controlled substance,
the government must show beyond a reasonable doubt (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. Valdez, 453 F.3d 252, 256–57 (5th Cir. 2006).
Uncorroborated testimony of a convicted co-conspirator is sufficient to support
a conspiracy conviction unless the testimony is incredible as a matter of law.
Id. at 257. De La Paz has not shown the evidence at his trial, which includes,
inter alia, testimony from his co-conspirators and law-enforcement officers
strongly establishing his participation in the conspiracy at issue, is insufficient
to support his conviction. See, e.g., Winkler, 639 F.3d at 696; Valdez, 453 F.3d
at 256–57.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that



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                                  No. 14-40247

respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
      To support a § 2D1.1(b)(1) enhancement, the Government is required to
establish by a preponderance of the evidence a “temporal and spatial
relationship [between] the weapon, the drug trafficking activity, and the
defendant”. Id. If the Government makes the required showing, the burden
shifts to the defendant “to show that it was clearly improbable that the weapon
was connected with the offense”. United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010) (citation omitted); see U.S.S.G. § 2D1.1, cmt. n.11(A).
      The Government provided evidence that the firearm at issue was found
inside the apartment where De La Paz was conducting drug-trafficking activity
and was readily accessible. De La Paz fails to show the court erred by imposing
the § 2D1.1(b)(1) enhancement or clearly erred in its factual findings. E.g.,
Zapata-Lara, 615 F.3d at 390.
      AFFIRMED.




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