     Case: 12-40955       Document: 00512298835         Page: 1     Date Filed: 07/08/2013




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

                                                                            FILED
                                                                            July 8, 2013
                                     No. 12-40955
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

J. JESUS PINEDA-PINEDA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CR-115-1


Before BARKSDALE, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       J. Jesus Pineda-Pineda appeals his jury-trial convictions for: conspiring
to possess, with intent to distribute, cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846; being an illegal alien in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(5); and possessing a firearm in furtherance of a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1). He contends: the Government did not
provide sufficient evidence to support the jury’s verdict; the imposed 99-month
prison sentence is greater than necessary to meet the sentencing goals of 18

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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U.S.C. § 3553(a)(2); and the district court erred by imposing a term of supervised
release, despite his deportable-alien status.
      A preserved sufficiency-of-the-evidence challenge, as in this instance, is
reviewed de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). The
evidence is viewed in the light most favorable to the Government to determine
whether a rational trier of fact could have found the essential elements of the
crimes beyond a reasonable doubt. Id.
      Ample direct and circumstantial evidence supports Pineda’s three
convictions. For the conspiracy conviction, testimony revealed officers observed
Pineda arrive at two controlled buys. After his arrival, a dealer provided the
cooperating witness with a large amount of drugs. Pineda was also observed
using a key to enter and exit an apartment from which an eventual search
yielded:   large amounts of cocaine; approximately $2000 in cash; drug
paraphernalia; and a loaded semiautomatic firearm. Some of the bills in the
apartment had serial numbers matching those provided to the cooperating
witness to make the final controlled buy.
      On more than one occasion, officers observed Pineda driving a gray
Chevrolet Malibu. It, along with vehicles driven by Pineda’s co-conspirator and
roommate, was registered to “Liborio Torres”. After one controlled buy, officers
observed Pineda pick up his co-conspirator, who appeared to be conducting
counter-surveillance measures. The evidence reveals at least a tacit agreement
to possess, with intent to distribute, cocaine existed between Pineda and his co-
defendants, and that Pineda knew of, and voluntarily participated in, the
conspiracy. E.g., United States v. Infante, 404 F.3d 376, 385-86 (5th Cir. 2005).
In considering the conspiracy evidence in the light most favorable to the verdict,
a reasonable juror could conclude Pineda was guilty beyond a reasonable doubt.
E.g., United States v. Mitchell, 484 F.3d 762, 768-71 (5th Cir. 2007).
      For Pineda’s being convicted of possession of a firearm by an illegal alien,
he neither challenges that the firearm was in and affecting interstate commerce

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                                   No. 12-40955

nor that he was in the United States illegally.           Instead, he claims the
Government failed to prove he knowingly possessed the firearm. See 18 U.S.C.
§ 922(g)(5) (unlawful for illegal alien to possess in or affecting commerce any
firearm or ammunition). Testimony revealed Pineda exercised dominion and
control over the residence where the firearm was discovered by using his key to
enter and exit the premises. On the morning officers executed the search
warrant for the apartment, Pineda was asleep in the bedroom, only steps away
from the closet where the firearm was found. The weapon was located in the
same closet where officials discovered cash from the final controlled buy.
Officers testified: the weapon was in plain sight; it was loaded; and there were
no impediments to anyone in the room grabbing the weapon. Based on the
evidence, a rational juror could reasonably conclude Pineda knowingly and
constructively possessed the firearm, sufficient to support his conviction
pursuant to 18 U.S.C. § 922(g)(5). See, e.g., United States v. Garcia-Flores, 246
F.3d 451, 454 (5th Cir. 2001).
      For the final of the three convictions, Pineda’s being convicted of
possessing a weapon in furtherance of a drug-trafficking offense was supported,
inter alia, by: the firearm’s being discovered loaded and on a shelf next to a box
of ammunition and a large amount of cocaine; and its being found in the same
closet where a large amount of cash was hidden. E.g., United States v. Nunez-
Sanchez, 478 F.3d 663, 669-70 (5th Cir. 2007); United States v. Molinar-
Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989).
      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, 48-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,



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only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Pineda did not challenge in district court the two sentencing issues he
raises here. Accordingly, review of each issue is only for plain error. E.g.,
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (failure to object at
sentencing to reasonableness of sentence triggers plain-error review); United
States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012) (failure to raise
claim that supervised release “ordinarily” should not be imposed when defendant
is a deportable alien triggers plain-error review). For reversible plain error,
Pineda must show a clear or obvious error that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to do so in either
instance.
      Regarding the belated challenge to the substantive reasonableness of his
99-month sentence, the district court considered the § 3553(a) sentencing factors,
as well as Pineda’s contentions in mitigation, and imposed a sentence within a
properly-calculated advisory Guidelines sentencing range. E.g., United States
v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Pineda does not show the
requisite clear or obvious error, such as by rebutting the presumption of
reasonableness that attaches to his within-Guidelines sentence. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); U.S.S.G. § 2K2.4(b) (Guideline
sentence for conviction under 18 U.S.C. § 924(c) is minimum term of
imprisonment required by statute). Along that line, his contending his sentence
is not entitled to a presumption of reasonableness because the presumption is
violative of United States v. Booker, 543 U.S. 220 (2005), is foreclosed by Rita v.
United States, 551 U.S. 338 (2007).
      Pineda asserts his term of supervised release is procedurally unreasonable
because the court neither informed him of its intent to depart from the advisory
Guidelines, nor adequately explained its reasons for imposing supervised
release, despite his status as a deportable alien. See U.S.S.G. § 5D1.1(c)

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(supervised release should not ordinarily be imposed when, inter alia, defendant
is a deportable alien likely to be deported after imprisonment).
      Once again, Pineda fails to show the requisite clear or obvious error.
Because the three-year term of supervised release imposed for the possession
convictions was within the statutory and advisory Guidelines sentencing ranges
for each offense, a departure analysis is not triggered. See Dominguez-Alvarado,
695 F.3d at 329; 18 U.S.C. § 3583(b)(1) & (2) (identifying authorized terms of
supervised release); U.S.S.G. § 5D1.1(b) (permissible but not mandatory to order
term of supervised release following imprisonment in cases other than those in
subsection (a)); U.S.S.G. § 5D1.2(a)(1) (identifying for Class A or B felony length
of supervised-release term when ordered). Further, Guideline § 5D1.1(c) is not
applicable to the term of supervised release imposed for Pineda’s conspiracy
conviction because the court was required by statute to impose a three-year term
of supervised release. 21 U.S.C. § 841(b)(1)(C); § 5D1.1(c). Moreover, the court
cited adequate reasons for its imposing supervised release.                   E.g.,
Dominguez-Alvarado, 695 F.3d at 330.
      AFFIRMED.




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