     Case: 13-40432      Document: 00512552220         Page: 1    Date Filed: 03/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40432
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 6, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellee

v.

SERAPIO CASTRO,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-191-13


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Serapio Castro challenges his within-Guidelines, 151-month sentence,
imposed following his guilty-plea conviction for conspiracy to possess, with
intent to distribute, more than 1,000 kilograms of marijuana, in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). In claiming his sentence is
unreasonable, he challenges only the district court’s assessment of a two-point




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40432     Document: 00512552220       Page: 2   Date Filed: 03/06/2014


                                   No. 13-40432

sentencing enhancement for possession of a weapon (an AK-47 assault rifle).
See U.S.S.G. § 2D1.1(b)(1).
      Castro contends: no physical evidence linked him to the firearm found;
he cannot be held responsible for a weapon about which he had no knowledge;
the stash house at which the firearm was discovered (Hargill house) was not
in his control; the Hargill house was outside the scope of his involvement in
the conspiracy; and, therefore, the firearm found there was not reasonably
foreseeable to him. He also contends the district court erroneously placed the
burden on him to show the weapon was not foreseeable, rather than on the
Government to prove foreseeability.
      Sentencing Guideline § 2D1.1(b)(1) provides a two-level enhancement of
defendant’s offense level “[i]f a dangerous weapon (including a firearm) was
possessed”. U.S.S.G. § 2D1.1(b)(1). Commentary to § 2D1.1 instructs: “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense”. U.S.S.G. § 2D1.1
cmt. n.11(A). This enhancement applies where defendant personally possessed
the weapon or where a co-conspirator possessed the weapon during the
conspiracy and that possession was reasonably foreseeable to defendant. See
United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
      Although post-Booker, the Sentencing 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 Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, as in this instance, its application
of the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008);



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                                 No. 13-40432

United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).            Whether
possession of firearms by co-conspirators is reasonably foreseeable is a factual
finding. See United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006).
      The Government must prove the applicability of the enhancement by a
preponderance of the evidence. United States v. Aguilera-Zapata, 901 F.2d
1209, 1215 (5th Cir. 1990). “If the Government meets that burden, 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 also U.S.S.G. § 2D1.1 cmt. n.11(A).
      “[F]irearms are ‘tools of the trade of those engaged in illegal drug
activities’”. Zapata-Lara, 615 F.3d at 390 (quoting Aguilera-Zapata, 901 F.2d
at 1215). As such, courts may infer defendant should have foreseen a co-
conspirator’s firearm possession. Id. Additionally, a large “amount of drugs
. . . and their [high] street value increase the likelihood—and thus
foreseeability—that those involved in the conspiracy will have dangerous
weapons”. Cisneros-Gutierrez, 517 F.3d at 766.
      Castro fails to demonstrate the district court clearly erred in finding the
enhancement applied. See, e.g., id. at 764–65. For starters, Castro played a
significant role in an extensive drug conspiracy. The drugs originating in
Mexico were moved initially to the Hargill house, where they were bundled for
distribution, and then moved to the nearby FM 2812 house, controlled by
Castro, where the drugs were concealed in cover loads of produce at the
direction of Castro and others. The extensiveness of the conspiracy, the large
volume (and necessarily high street value) of the drugs involved, as well as the
connection between the Hargill and FM 2812 houses, establishes the requisite
foreseeability. See U.S.S.G. § 2D1.1 cmt. n.11(A); § 1B1.3(a)(1)(B); see also
Cisneros-Gutierrez, 517 F.3d at 765–66.



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                                 No. 13-40432

      Moreover, Castro has not demonstrated it was “clearly improbable” that
the AK-47 assault rifle found at the Hargill house was involved in the
conspiracy.   U.S.S.G. § 2D1.1 cmt. n.11(A).      His claim that any offense
committed at the Hargill house was outside the scope of his involvement is not
supported by evidence. See, e.g., Ruiz, 621 F.3d at 396. (The Supreme Court’s
just-rendered decision in Rosemond v. United States concerned conviction
under 18 U.S.C. § 2 for aiding and abetting a violation of 18 U.S.C. § 924(c) and
is not applicable to this appeal from the sentencing for a guilty-plea conspiracy
conviction. No. 12-895, 572 U.S. __, slip op. at *1–2, *11 n.7, *16 n.10 (2014)
(stating “holding is grounded in the distinctive intent standard for aiding and
abetting” and expressing no view on whether “a § 924(c) violation is a natural
and probable consequence of simple drug trafficking”)).
      AFFIRMED.




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