     Case: 16-10390      Document: 00513969379         Page: 1    Date Filed: 04/26/2017




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

                                      No. 16-10390                           FILED
                                                                         April 26, 2017
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

                            Plaintiff - Appellee

v.

GEORGE SNELSON,

                            Defendant - Appellant



                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:15-CR-237-1


Before JONES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant George Snelson pled guilty to possession of fifty grams or more
of methamphetamine with intent to distribute. In calculating his sentence, the
district court applied a two-point enhancement for possession of a dangerous
weapon during the offense and another two-point enhancement for
maintaining a premises for the purpose of distributing a controlled substance.
On appeal, Snelson challenges the application of both enhancements. The
sentence is AFFIRMED.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10390
                              BACKGROUND
      Snelson pled guilty to possession with intent to distribute fifty grams or
more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The
Presentence Report (PSR) established a base offense level of 34. It also applied
various conduct-specific enhancements, including a two-point enhancement
under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon and a two-
point enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises
for the purpose of distributing a controlled substance. Snelson objected to both
enhancements. The district court overruled his objections and determined that
both enhancements were proper under the Guidelines.
      Snelson’s total offense level was set at 39. With a criminal history
category of IV, the resulting advisory Guidelines range was 360 months to life
imprisonment. As Snelson’s underlying offense carries a maximum sentence
of 40 years, the appropriate Guidelines range was shortened to 360–480
months of imprisonment. U.S.S.G. § 5G1.1. The district court adopted the
PSR and sentenced Snelson to 360 months of imprisonment and four years of
supervised release. Snelson timely appealed.
                                DISCUSSION
      On appeal, Snelson contends that the district court erred by applying
both two-point enhancements.
                                       I.
      Snelson first challenges the district court’s application of the two-point
enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous
weapon. At sentencing, he objected to this enhancement on the ground that
there was no evidence in the record to show when the firearm described in the
PSR was purchased or that he possessed a firearm during commission of the
offense. On appeal, Snelson now argues that it is “clearly improbable” that the


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                                   No. 16-10390
firearm was connected to his September 2014 offense because it was purchased
in December 2014.
      We review the district court’s legal interpretation of the Guidelines de
novo, and its application of the guidelines to the facts of the case for clear error.
United States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990). The decision to apply
section 2D1.1 is a factual question and so it is reviewed for clear error. United
States v. Eastland, 989 F.2d 760, 769 (5th Cir. 1993).
      Section 2D1.1(b)(1) provides for a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed.”                     U.S.S.G.
§ 2D1.1(b)(1).   “Before a sentencing court can apply § 2D1.1(b)(1), the
government must prove weapon possession by a preponderance of the
evidence.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
Possession can be established “by showing a temporal and spatial relationship
of the weapon, drug trafficking activity, and the defendant.” Id.
      Snelson incorrectly contends that the enhancement can only be applied
if he possessed a firearm during the commission of the actual offense for which
he was convicted. United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995) (“[The
§ 2D1.1(b)(1)] adjustment is not limited to those scenarios in which the
defendant possesses a dangerous weapon during the offense of conviction; the
adjustment is also to be made when the defendant possesses a dangerous
weapon during the course of related relevant conduct.”). The enhancement can
be validly applied to the conduct of the offense, as well as all other relevant
conduct under U.S.S.G. § 1B1.3(a)(1). Id.; Paulk, 917 F.2d at 884 (“The district
court [can] properly consider related relevant conduct in determining the
applicability of section 2D1.1(b)(1).”).
      Here, the two-point enhancement was based on Snelson’s December 2014
purchase of a handgun from one of the persons involved in his
methamphetamine trafficking operation.           The PSR indicated that after
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                                 No. 16-10390
Snelson was arrested for the methamphetamine possession that formed the
basis of his underlying conviction, he was released on personal recognizance
and continued to sell methamphetamine from November 2014 to August 2015.
      The district court found that this continued trafficking constituted
relevant conduct, and also determined that a temporal and spatial relation
existed between the firearm, the drug-trafficking activity, and the defendant.
See Paulk, 917 F.2d at 884.         Snelson does not challenge either of these
determinations, and instead merely relies upon his contention that the
enhancement does not apply because the firearm was purchased three months
after the offense of conviction occurred.
      Accordingly, Snelson has failed to show that the district court clearly
erred in applying the section 2D1.1(b)(1) enhancement. United States v. Ayala,
47 F.3d 688, 690 (5th Cir. 1995).
                                        II.
      Snelson also challenges the district court’s application of the two-point
enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the
purpose of manufacturing or distributing a controlled substance. The district
court applied the enhancement based on undisputed facts in the PSR and its
addenda that Snelson regularly rented and used various hotel rooms in the
Dallas-Fort Worth area to store and distribute methamphetamine. Snelson
argues there is no evidence in the PSR to establish that he continuously used
any single motel room or that he used a single room for a continued duration.
As a result, he claims there is insufficient continuity between the rooms to rise
to the level of maintaining a premises.
      Because Snelson objected to the enhancement in the district court on the
same ground advanced on appeal, this court will review the district court’s
interpretation or application of the Guidelines de novo and its factual findings
for clear error. United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).
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                                  No. 16-10390
      Section 2D1.1(b)(12) permits a two-point enhancement “[i]f the
defendant maintained a premises for the purpose of manufacturing or
distributing a controlled substance.” A “building, room, or enclosure” can
qualify as a premises under the Guidelines. U.S.S.G. § 2D1.1(b)(12) cmt. 17.
      The PSR and its addenda contained evidence that Snelson would sell
methamphetamine from various motel rooms in Dallas-Fort Worth and would
remain in some of those rooms for multiple days before moving to another
location. The factual statements in a PSR are “presumed reliable and may be
adopted by the district court ‘without further inquiry’ if the defendant fails to
demonstrate by competent rebuttal evidence that the information is
‘materially untrue, inaccurate or unreliable.’”     United States v. Carbajal,
290 F.3d 277, 287 (5th Cir. 2002). Because Snelson did not show that the
evidence in the PSR was materially untrue, the district court was entitled to
rely on it during sentencing. Ayala, 47 F.3d at 690 (“[I]n the absence of rebuttal
evidence, the sentencing court may properly rely on the PSR and adopt it.”).
      Snelson contends that this court requires more evidence of continuity to
fulfill this guideline. He relies on United States v. Morgan, 117 F.3d 849, 856-
58 (5th Cir. 1997), a case involving a conviction under the “crackhouse” statute,
21 U.S.C. § 856(a)(1). Assuming arguendo that the criminal statute affords a
model for interpretation of section 2D1.1(b)(12), Morgan is distinguishable.
The defendant there did not own or lease the premises, which belonged to a
fellow conspirator; here, Snelson “maintained” various motel rooms, which he
leased for up to a week at a time, all for the purpose of distributing
methamphetamine.




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                                       No. 16-10390
       Accordingly, the district court’s determination that Snelson maintained
a premises for storing and distributing methamphetamine is plausible in light
of the record as a whole and Snelson has failed to show reversible error. 1
                                     CONCLUSION
       The appellant’s sentence is AFFIRMED.




       1 This holding is consistent with this court’s prior precedent. United States v. Navarro,
582 F. App’x 510, 511 (5th Cir. 2014) (per curiam) (“[T]he unrebutted facts in the PSR and
its addenda support the district court’s finding that [the defendant] and her on-and-off
boyfriend moved from hotel to hotel, selling methamphetamine from the rooms in which they
stayed. . . . [The defendant] has not shown that the district court’s factual findings were
clearly erroneous or that it erred in applying [the premises enhancement] in this case.”). We
cite this unpublished opinion in this decision not because it is precedential, which it is not,
see 5TH CIR. R. 47.5.4, but to show the consistency of our dispositions.
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