     Case: 14-41139      Document: 00513099512         Page: 1    Date Filed: 06/30/2015




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

                                    No. 14-41139                                     FILED
                                  Summary Calendar                               June 30, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIC DESHAUN SMITH,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-29-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Eric Deshaun Smith (Smith) appeals the 235-month custody sentence
imposed by the district court after he pleaded guilty to conspiracy to possess
with intent to manufacture and distribute methamphetamine, in violation of
21 U.S.C. § 846. Smith objects to the two-level enhancement the district court
assessed pursuant U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during a
drug trafficking offense.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41139

      Section 2D1.1(b)(1) provides for a two-level increase in the defendant’s
base offense level if a firearm “was possessed” during a drug trafficking offense.
United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001). As a threshold
matter, the Government must prove the defendant’s possession of the weapon
by a preponderance of the evidence. United States v. Zapata-Lara, 615 F.3d
388, 390 (5th Cir. 2010). To do so, the Government may establish that the
defendant personally possessed the weapon by showing that a temporal and
spatial relationship existed between the weapon, the drug trafficking offense,
and the defendant. See id. Alternatively, it may show that a coconspirator
possessed the weapon in furtherance of the conspiracy and the coconspirator’s
possession was reasonably foreseeable to the defendant. See id. Once the
Government proves possession, “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).
      Smith fails to establish reversible error based upon the record before the
district court. Smith does not dispute that his girlfriend and coconspirator,
Randi Morris, informed him that she had purchased a firearm while he was
incarcerated and was storing it in their home. Although he contends that he
told Morris to dispose of the gun and assumed that she had, he offers no
evidentiary support for this argument and cites only to his objections to the
presentence investigation report (PSR). But objections to the PSR are not
evidence. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)
(objections to the PSR are only unsworn assertions). Thus, Smith has not
shown that the district court clearly erred in finding that Morris’s continued
possession of the gun was reasonably foreseeable to Smith. See, e.g., United
States v. Gutierrez-Mendez, 752 F.3d 418, 429 (5th Cir.) (defendant’s self-
serving statements and objections to PSR failed to rebut district court’s finding



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                                 No. 14-41139

of reasonable foreseeability), cert. denied, 135 S. Ct. 298 (2014). Nor has Smith
established that the district court clearly erred in finding that the gun was
connected to drug trafficking, as he does not seriously dispute that the gun was
located in the same room as a safe containing $3,275, the market rate for four
ounces of methamphetamine. See United States v. Juluke, 426 F.3d 323, 327-
28 (5th Cir. 2005) (enhancement proper where loaded weapons found in close
proximity to drug proceeds).
      Accordingly, the judgment of the district court is AFFIRMED.




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