     Case: 11-10047     Document: 00511639391         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-10047
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID MEDRANO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-149-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        David Medrano pleaded guilty to one count of possession of a controlled
substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B),
and one count of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). The district court sentenced Medrano to concurrent
imprisonment terms of 360 months and 120 months and concurrent supervised
release terms of four years and three years. Medrano challenges his sentence



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10047

by arguing that the district court erred in its guidelines determinations, and he
contends that his sentence is substantively unreasonable.
      Contending that the district court used unreliable information from
confidential sources who were not credible, Medrano argues that the district
court erred by determining drug quantity. Medrano objected on this basis in
district court proceedings in written objections to the presentence report (PSR).
At the sentencing hearing, however, Medrano explicitly withdrew his objections
to drug quantity. Medrano’s drug quantity challenge is therefore waived and is
unreviewable by this court. See United States v. Arviso-Mata, 442 F.3d 382, 384
(5th Cir. 2006); United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995).
      Medrano preserved his objection to the enhancement of his sentence based
upon U.S.S.G. § 2D1.1(b)(1), which provides for a two-level increase for offenses
involving drugs “[i]f a dangerous weapon (including a firearm) was possessed.”
§ 2D1.1(b)(1). The district court’s decision to enhance Medrano’s sentence for
possession of firearms was a factual determination that this court reviews for
clear error. United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010); United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). A § 2D1.1(b)(1) enhancement
is appropriate if a weapon is present “unless it is clearly improbable that the
weapon was connected with the offense.” § 2D1.1, comment. (n.3). It does not
matter whether Medrano used or intended to use the weapons. Rather, the
pertinent fact is that the weapons could have been used. See United States v.
Jacquinot, 258 F.3d 423, 431 (5th Cir. 2001). As Medrano did not present
evidence to rebut the facts set forth in the PSR, the district court was entitled
to rely upon the facts set forth therein. Vital, 68 F.3d at 120. Facts in the
PSR establish that firearms were present in Medrano’s residence, he conducted
drug trafficking activities from his home, and drug paraphernalia was found in
the home. Thus, it was not clearly improbable that the weapons were connected
with the offense, and the district court did not commit clear error when it



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                                  No. 11-10047

enhanced Medrano’s sentence pursuant to § 2D1.1(b)(1). See United States v.
Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).
      In addition, Medrano preserved his objection to the § 2D1.1(b)(4)
enhancement, which applies where, inter alia, the offense involved the
importation of methamphetamine and the defendant is not subject to a
mitigating role adjustment. A district court may rely upon hearsay in making
sentencing determinations. See United States v. Solis, 299 F.3d 420, 455 (5th
Cir. 2002). The PSR relates statements by Medrano, told to law enforcement
agents, that indicate that he knew that he was dealing drugs that had been
imported into the United States.       The district court’s determination that
Medrano knew that he was selling methamphetamine that was being brought
into the United States from Mexico therefore does not amount to clear error.
§ 2D1.1(b)(4); United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).
      Medrano did not object to the substantive reasonableness of his sentence
in the district court. Plain error review therefore governs this issue. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Where, as in Medrano’s
case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      The sole basis of Medrano’s challenge to the substantive reasonableness
of his sentence is his argument regarding drug quantity. As set forth above,
Medrano withdrew his objection to drug quantity and therefore this issue is
waived and is unreviewable by this court. As he presents no other argument to
challenge the substantive reasonableness of his sentence, Medrano has failed to
rebut the presumption of reasonableness that attaches to his within-guidelines
sentence. See id.
      AFFIRMED.




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