     Case: 17-11055      Document: 00514525618         Page: 1    Date Filed: 06/22/2018




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

                                                                                FILED
                                    No. 17-11055                            June 22, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MANUEL ALBARRAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-56-2


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Jose Manuel Albarran appeals his 87-month, within-guidelines sentence
received following his guilty-plea conviction for conspiracy to possess with
intent to distribute cocaine.        He challenges the district court’s guidelines
calculations, which would constitute a procedural error. See Gall v. United
States, 552 U.S. 38, 51 (2007). A district court commits a procedural error, and
thus “abuses its discretion[,] if it bases its decision on an error of law or a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11055    Document: 00514525618     Page: 2     Date Filed: 06/22/2018


                                 No. 17-11055

clearly erroneous assessment of the evidence.”         United States v. Castillo,
430 F.3d 230, 238-39 (5th Cir. 2005) (quoting United States v. Smith,
417 F.3d 483, 486-87 (5th Cir. 2005)). We review a challenge to the district
court’s interpretation of the Guidelines de novo, while we review a claim of
mistaken factual findings or a misapplication of the Guidelines to the factual
findings for clear error. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir.
2000).
      Albarran first contends that the district court erred by including five
kilograms of cocaine in his base offense level; he maintains that he and his
coconspirators merely offered to make such a sale and that the buyers did not
agree to the purchase. The presentence report (“PSR”) and the PSR addendum
indicate that the parties agreed to a purchase of three kilograms of cocaine
that were immediately available and to a purchase of five kilograms to be
delivered later. A district court may adopt the facts in a PSR “without further
inquiry if those facts have an adequate evidentiary basis with sufficient indicia
of reliability and the defendant does not present rebuttal evidence or otherwise
demonstrate that the information in the PSR is unreliable.” United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Trujillo,
502 F.3d 353, 357 (5th Cir. 2012)). Albarran’s objection to the PSR’s drug
quantity finding did not qualify as rebuttal evidence. United States v. Parker,
133 F.3d 322, 329 (5th Cir. 1998). Albarran has not shown that the court’s
factual finding was implausible in light of the record as a whole. See United
States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).
      Albarran then asserts that the district court erred by applying a two-
level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based on his
codefendant’s possession of a firearm at the time of their arrest. Under the
Sentencing Guidelines, coconspirators are responsible for reasonably



                                       2
    Case: 17-11055    Document: 00514525618     Page: 3   Date Filed: 06/22/2018


                                 No. 17-11055

foreseeable actions occurring within the scope of, and in furtherance of, jointly
undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(B); see United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990) (recognizing that a
defendant may receive a § 2D1.1(b)(1) enhancement based on a codefendant’s
possession of a firearm). Albarran cites no authority for his assertion that the
underlying action—the possession of the firearm—must itself be jointly
undertaken criminal activity for an enhancement to apply.          Although he
contends that he could not have foreseen the presence of a hidden weapon
during a cocaine transaction, “[w]e have held that a district court may
ordinarily infer that a defendant should have foreseen a codefendant’s
possession of a dangerous weapon . . . if the government demonstrates that
another participant knowingly possessed a weapon while he and the defendant
committed the offense.” United States v. Garza, 118 F.3d 278, 285-86 (5th Cir.
1997) (quoting United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)). To
the extent that Albarran argues that his codefendant’s possession of the
firearm was not in furtherance of jointly undertaken criminal activity because
his codefendant could have possessed the firearm to prevent Albarran himself
from cheating him, he has not shown that the district court’s findings were not
plausible in light of the record as a whole. See Alaniz, 726 F.3d at 618;
U.S.S.G. § 1B1.3(a)(1)(B).
      Finally, Albarran argues that, if he prevails on his challenges to the
guidelines calculations, his 87-month sentence would be substantively
unreasonable because it would constitute an upward variance that was not
justified by the record. As explained above, Albarran has not shown error in
the guidelines calculations. See Lyckman, 235 F.3d at 237. As Albarran
concedes, we employ a presumption of reasonableness for a sentence imposed
within the proper advisory guidelines range. See United States v. Campos-



                                       3
    Case: 17-11055    Document: 00514525618     Page: 4   Date Filed: 06/22/2018


                                 No. 17-11055

Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Albarran has not established
“that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). The
district court therefore did not abuse its discretion in imposing the sentence.
See Gall, 552 U.S. at 51.
      Albarran has shown no reversible error arising from the sentencing
proceedings. Accordingly, the judgment of the district court is AFFIRMED.




                                       4
