United States v. Bravo ( 2021 )

Case: 20-10008 Document: 00515828607 Page: 1 Date Filed: 04/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 20, 2021
No. 20-10008 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rafael Bravo,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-83
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
We WITHDRAW the prior opinion filed March 25, 2021 and
substitute the following.
During their search of the residence of Rigo Sandoval, a known drug
dealer, officers saw Rafael Bravo throw a gun over the fence in Sandoval’s
backyard. Officers also discovered a stash of firearms and 2,978 grams of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10008 Document: 00515828607 Page: 2 Date Filed: 04/20/2021
No. 20-10008
methamphetamine in Sandoval’s home. Bravo was charged with, and
pleaded guilty to, one count of possession of a firearm by a convicted felon.
In determining the sentence recommendation for the presentence
investigation report, the probation officer concluded that Bravo was
accountable for the 2,978 grams of methamphetamine because, based upon
the evidence, he and Sandoval were co-conspirators with respect to the
drugs. The probation officer then applied § 2K2.1(c)(1)(A)—the firearm
offense guideline’s cross reference to the drug offense guideline—to
calculate Bravo’s base offense level. The district court adopted the
presentence investigation report’s recommendation and sentenced Bravo to
120 months’ imprisonment and 3 years’ supervised release. Bravo challenges
his sentence, arguing that the district court erred by implicitly finding that
Bravo and Sandoval had jointly undertaken a criminal activity with respect to
the 2,978 grams of methamphetamine found at Sandoval’s home. We affirm.
I
In December 2018, law enforcement received information that Rigo
Sandoval was selling methamphetamine from his home. On January 31, 2019,
officers executed a search of Sandoval’s home where they encountered eight
individuals, including Sandoval and his cousin, Rafael Bravo. When officers
entered Sandoval’s backyard, Bravo threw a gun over Sandoval’s fence into
an adjacent backyard. Inside the residence, officers found several additional
firearms, ammunition, $9,236 cash, a digital scale, and 2,978 grams of
methamphetamine.
Sandoval and Bravo were arrested on federal charges. After his arrest,
Sandoval admitted that he lived at the residence, the methamphetamine
found in the residence belonged to him, and he was involved in
methamphetamine distribution. Officers identified Bravo as Sandoval’s
cousin and one of Sandoval’s “methamphetamine customers” because
2
Case: 20-10008 Document: 00515828607 Page: 3 Date Filed: 04/20/2021
No. 20-10008
Sandoval admitted that, in the months prior to their arrest, he had sold 56.7
grams of methamphetamine to Bravo, who then redistributed the drugs to his
own customers. Based on Sandoval’s admissions, the probation officer
concluded that Bravo and Sandoval were co-conspirators with respect to the
2,978 grams of methamphetamine found inside Sandoval’s home. The
probation officer thus held Bravo accountable for the 2,978 grams of
methamphetamine found inside Sandoval’s home as well as the 56.7 grams
of methamphetamine that Bravo had previously purchased from Sandoval for
a total of 3,034.7 grams of methamphetamine.
Because this incident involved firearms and drugs, the probation
officer worked through several guidelines to calculate Bravo’s sentence,
which will be discussed in detail below. In calculating Bravo’s base offense
level, the probation officer determined that § 2K2.1 was the relevant
guideline because Bravo was convicted of felony possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The probation officer then
applied § 2K2.1’s cross reference to § 2X1.1 because Bravo possessed the
firearm in connection with the commission of another offense; namely,
possession of a controlled substance. U.S.S.G. § 2K2.1(c)(1)(A). Since the
base offense level under § 2X1.1 is the “base offense level from the guideline
for the substantive offense, plus any adjustments from that guideline,” the
probation officer applied § 2D1.1, the guideline for possession of controlled
substance violations. Id. § 2X1.1(a). 1 Based on the 3,034.7 grams of
methamphetamine for which Bravo was held accountable, the probation
officer calculated Bravo’s base offense level as 36. Id. § 2D1.1(c)(2). The
probation officer then added 2 levels because Bravo possessed a dangerous
1
The probation officer determined that possession of a controlled substance was
the substantive offense because Sandoval was charged with possession of a controlled
substance, in violation of 21 U.S.C. § 841(a).
3
Case: 20-10008 Document: 00515828607 Page: 4 Date Filed: 04/20/2021
No. 20-10008
weapon. Id. § 2D1.1(b)(1). Finally, the probation officer subtracted 2 levels
because Bravo had demonstrated acceptance of responsibility. Id. § 3E1.1(a).
Thus, the probation officer set Bravo’s total offense level at 36.
With a total offense level of 36 and Bravo’s criminal history category
of IV, the Guidelines range was 262–327 months. However, 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) set a maximum sentence of 10 years’
imprisonment, so the probation officer recommended a sentence of 120
months’ imprisonment and 1 year to 3 years of supervised release. Id.§ 5G1.1(a).
Bravo filed written objections to the PSR. He objected to the PSR’s
description of Sandoval’s admissions and conduct “to the extent this
information [about Sandoval] is used as a basis for the ‘drug cross reference’
guideline calculations.” He also objected to the use of the listed drug
quantities for Guidelines calculation purposes, denying that he was a
methamphetamine customer of Sandoval and that he distributed
methamphetamine to his own customer base. Finally, Bravo argued that his
base offense level should have been 20 and his total offense level 18, which,
when computed with his criminal history category of IV, would have yielded
a Guidelines range of 41–51 months. Id. § 2K2.1(a)(4)(A).
The Government argued that Bravo’s objections should be overruled
because Bravo offered no evidence to rebut the evidence in the PSR. The
Government asserted that Sandoval’s cell phone messages showing that
Sandoval was a methamphetamine dealer, Bravo’s knowledge that Sandoval
distributed drugs from his home, Bravo’s arrest at Sandoval’s home “where
a substantial amount of methamphetamine and firearms were recovered,”
Bravo’s relationship to Sandoval as his cousin, and Bravo’s criminal history,
including two prior convictions for drug-possession offenses, all
corroborated the PSR’s conclusion that Bravo and Sandoval were co-
4
Case: 20-10008 Document: 00515828607 Page: 5 Date Filed: 04/20/2021
No. 20-10008
conspirators with respect to the 2,978 grams of methamphetamine found at
Sandoval’s home.
The probation officer also responded to Bravo’s objections in an
addendum to the PSR. She stated that the information in the PSR had a
“sufficient indicia of reliability” since it was based on the indictment, factual
resume, investigative material from local police and federal agents, and
interviews with a federal agent. The probation officer also noted that Bravo
“did not provide information to rebut the information in the PSR,” and she
declined to make any changes to the PSR in response to Bravo’s objections.
At sentencing, Bravo relied on his written objections and did not
present the district court with any evidence to rebut the information in the
PSR. The district court overruled Bravo’s objections for the reasons stated
in the Government’s response and in the PSR’s addendum and then adopted
the facts and conclusions stated in the PSR.
The district court then sentenced Bravo to 120 months’
imprisonment and 3 years’ supervised release. Bravo objected that the
sentence was not reasonable. The district court overruled that objection
based upon “the facts and circumstances of this offense,” including: (1) the
circumstances of the search of Sandoval’s home and Bravo’s actions during
that search; (2) “the amount of drugs and guns and cash” found at
Sandoval’s home; (3) Bravo’s role in the offense; and (4) Bravo’s prior
criminal history of drug offenses, state weapons offenses, and violent crimes.
In its Statement of Reasons, the district court also noted that, “[e]ven if the
guideline calculations are not correct, this is the sentence the Court would
otherwise impose under 18 U.S.C. § 3553.”
Bravo timely appealed his sentence, arguing that the district court
erred in finding that Bravo and Sandoval were jointly undertaking a criminal
5
Case: 20-10008 Document: 00515828607 Page: 6 Date Filed: 04/20/2021
No. 20-10008
activity with respect to the 2,978 grams of methamphetamine found inside
Sandoval’s home.
II
Bravo argues that we should review the district court’s finding for
clear error, while the Government argues that we should review for plain
error because Bravo did not specifically object on this basis below. To
determine the appropriate standard of review, we must first assess whether
Bravo properly preserved the issue he raises on appeal. If he did, we review
the district court’s finding for clear error. United States v. Chavez-Hernandez,
671 F.3d 494, 497 (5th Cir. 2012) (citing United States v. Gharbi, 510 F.3d
550, 554 (5th Cir. 2007)). But if he did not, we review only for plain error. Id.;
Fed. R. Crim. P. 52(b).
To preserve an issue for appeal, a defendant must make an objection
that is “sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v.
Nesmith, 866 F.3d 677, 679 (5th Cir. 2017) (internal quotation marks and
citation omitted). Where a defendant provides a written objection, we
similarly consider whether the “written objection was clear enough to
provide the district court with opportunity to rule on it.” United States v.
Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015) (internal quotation marks
and citation omitted). But we do not require that a defendant’s objection
below and his argument on appeal be identical. Nesmith, 866 F.3d at 679.
Instead, a defendant preserves an issue for appeal so long as the “crux of his
objection is the same” as his argument on appeal. Id.
Bravo’s written objections before the district court have the same
fundamental core as the issue on appeal—both concern whether Bravo can
be held accountable for the drugs at Sandoval’s home based upon his joint
criminal activity with Sandoval. Bravo objected to Sandoval’s admissions and
6
Case: 20-10008 Document: 00515828607 Page: 7 Date Filed: 04/20/2021
No. 20-10008
conduct, as described in the PSR, “to the extent this information [wa]s used
as a basis for the ‘drug cross reference’ guideline calculations, or in any
manner in which [Bravo] [wa]s believed responsible or accountable for the
material seized.” Bravo also objected to the use of the listed drug quantities
for Guidelines calculation purposes, denying that he was a
methamphetamine customer of Sandoval and that he distributed
methamphetamine to his own customer base. Bravo’s objections thus put the
district court on notice that he objected to being held accountable for the
2,978 grams of methamphetamine found inside Sandoval’s home. And the
district court had the opportunity to address the core of Bravo’s argument
since it explicitly adopted the Government’s response to Bravo’s objections
and the PSR’s addendum, both of which concluded that there was a
conspiracy between Bravo and Sandoval based on the facts in the PSR.
Because Bravo preserved the issue he now raises on appeal, we review
the district court’s factual finding for clear error. Gomez-Alvarez, 781 F.3d at
791. “[I]f the district court’s finding is plausible in light of the record as a
whole,” then there is no clear error. Id. (quotation marks and citation
omitted).
III
Before we turn to Bravo’s challenge, we first detail the mechanics of
the relevant Guidelines cross reference. The § 2K2.1(c)(1)(A) cross
reference applies when a firearm facilitated “another offense” and the
firearm was cited in the offense of conviction. U.S.S.G. § 2K2.1 cmt. 14(A).
When “another offense” is a drug offense, the cross reference applies when
the firearm is “found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia.” Id. § 2K2.1 cmt. 14(B). The cross
reference may apply even if the defendant was not charged with, or convicted
of, the drug offense. Id. § 2K2.1 cmt. 14(C) (definition of “another offense”).
7
Case: 20-10008 Document: 00515828607 Page: 8 Date Filed: 04/20/2021
No. 20-10008
Those circumstances are present here. Officers saw Bravo with a
handgun in Sandoval’s backyard, that firearm was in close proximity to the
2,978 grams of methamphetamine in Sandoval’s home, and Bravo was
convicted of felony firearm possession.
However, for the cross reference to apply, the district court must also
consider the relationship between the offense of conviction and the drug
offense. Id. § 2K2.1 cmt. 14(E). See id. § 1B1.3(a) (specifically noting its
application to “cross references in Chapter Two”). If the “relevant
conduct” for the drug offense includes “jointly undertaken criminal
activity,” the district court may hold the defendant accountable for another
person’s conduct only if that conduct was (1) “within the scope of the jointly
undertaken criminal activity,” (2) “in furtherance of that criminal activity,”
and (3) “reasonably foreseeable in connection with that criminal activity.”
Id. § 1B1.3(a)(1)(B). See also id. § 1B1.3 cmt. 3(A).
We now consider whether the record supports the application of the
cross reference in this case. To hold Bravo accountable for the 2,978 grams
of methamphetamine found in Sandoval’s home, the district court had to find
that Sandoval’s possession of those drugs was within the scope of a joint
criminal activity with Bravo, in furtherance of that activity, and reasonably
foreseeable. And the district court only needed to find these facts by a
preponderance of the evidence. See, e.g., United States v. Landreneau, 967
F.3d 443, 451 (5th Cir. 2020).
Bravo argues that the Government failed to show that Sandoval’s
possession of the drugs was within the scope of a jointly undertaken criminal
activity between Sandoval and Bravo. 2 Sandoval admitted that, in the months
2
Bravo asserts that the Government “didn’t even make the determination that
Sandoval’s stash was foreseeable to Bravo,” but he does not sufficiently brief this issue.
8
Case: 20-10008 Document: 00515828607 Page: 9 Date Filed: 04/20/2021
No. 20-10008
before the January 31 search of his home, he had sold Bravo 56.7 grams of
methamphetamine, which Bravo then redistributed. Bravo does not contest
that he is accountable for those 56.7 grams. But he claims he should not be
held accountable for the 2,987 grams found at Sandoval’s home because the
Government did not prove that Bravo had an agreement to possess those
drugs with Sandoval. In so arguing, Bravo attempts to isolate his previous
methamphetamine purchase from Sandoval from the circumstances
surrounding the stash of methamphetamine at Sandoval’s home.
Bravo’s prior drugs purchase, standing on its own, does not
necessarily show that the Sandoval’s possession of the stash of drugs was
within the scope of Bravo’s and Sandoval’s jointly undertaken criminal
activity. 3 But the district court did not clearly err by viewing these two
And Bravo does not raise any arguments about the “in furtherance of” element of jointly
undertaken criminal activity.
3
The facts of this case fall between those of our precedent. In Mitchell, we vacated
a sentence holding the defendant responsible for 20 kilograms of drugs when he had
pleaded guilty to conspiring to distribute only 0.5 kilograms. United States v. Mitchell, 964
F.2d 454, 456, 461 (5th Cir. 1992). Similarly, in Rivera, we vacated a sentence that held the
defendant responsible for 224.47 grams of heroin when he had pleaded guilty to possessing
only 0.28 grams. United States v. Rivera, 898 F.2d 442, 443, 445–46 (5th Cir. 1990). And in
Roddy, we vacated a sentence that held the defendant responsible for 1,000 grams of
methamphetamine that she saw in a Ziploc bag in her supplier’s home when she was there
to purchase 1 ounce of methamphetamine. United States v. Roddy, 812 F. App’x 285, 285–
86 (5th Cir. 2020). In contrast, in United States v. Ponce, 917 F.2d 841 (5th Cir. 1990), we
affirmed a sentence holding the defendant accountable for his co-conspirators’ drugs
totaling 231.3 grams of cocaine despite his pleading guilty to possession of about 23 grams.
Id. at 842, 846.
Here, the 2,978 grams found inside Sandoval’s home is approximately 60 times
greater than the 56.7 grams that Bravo purchased from Sandoval. If we were deciding this
case in the first instance, we might find that Bravo should not be on the hook for the entire
2,978 grams. But in light of the entire record in this case and our deferential standard of
review, we do not have a “definite and firm conviction that a mistake has been committed.”
United States v. Torres-Magana, 938 F.3d 213, 216 (5th Cir. 2019).
9
Case: 20-10008 Document: 00515828607 Page: 10 Date Filed: 04/20/2021
No. 20-10008
incidents together. Indeed, the previous purchase demonstrates that Bravo
knew that Sandoval was a drug dealer. Plus, Bravo’s purchase from Sandoval
in the months prior to their arrest is probative as to why Bravo was present—
and with a handgun—at Sandoval’s drug-distribution home on the day of the
January 31 search.
Moreover, under clear error, we must review the district court’s
finding in light of the entire record. That record shows that: (1) Bravo was at
Sandoval’s residence on the day of the search with a handgun; (2) Bravo
threw that handgun over the fence when officers arrived; (3) Bravo knew that
Sandoval sold drugs from his home because Bravo had previously purchased,
and then redistributed, methamphetamine from Sandoval; and (4) Bravo had
two prior drug possession convictions. In light of all that evidence, the district
court did not commit clear error in finding that Sandoval’s possession of
2,987 grams of methamphetamine was within the scope of jointly undertaken
criminal activity with Bravo.
Bravo argues that these circumstantial facts do not show an agreement
between Sandoval and him to jointly undertake criminal acts with respect to
the stash of drugs. Bravo also argues that his “few prior buys” from Sandoval
fail to show that the stash of drugs at Sandoval’s home was within the scope
of an agreement with Sandoval; instead, he claims that his case is analogous
to an example in the Sentencing Guidelines. See U.S.S.G. § 1B1.3 cmt.
4(C)(vii). Finally, he argues that his prior drug-possession convictions also
fail to make this showing because the first was too remote and did not involve
Sandoval and the second involved marijuana, not methamphetamine.
Bravo’s arguments about isolated parts of the record overlook the
entire record as a whole. The facts and circumstances of this case are
distinguishable from the Sentencing Guidelines example on which Bravo
relies—unlike the defendant in that example, officers found Bravo at
10
Case: 20-10008 Document: 00515828607 Page: 11 Date Filed: 04/20/2021
No. 20-10008
Sandoval’s drug-distribution home, and Bravo had a handgun, which he tried
to remove from Sandoval’s home once the officers arrived. See id. § 1B1.3
cmt. 4(C)(vii). Because the district court was permitted to make “common-
sense inferences” from this circumstantial evidence, the district court could
plausibly find that the stash of drugs in Sandoval’s home fell within the scope
of Bravo and Sandoval’s joint criminal undertaking. United States v. Caldwell,
448 F.3d 287, 292 (5th Cir. 2006).
Bravo further asserts that the PSR disregarded three facts: (1) he did
not admit to possessing any of the methamphetamine found in Sandoval’s
house; (2) he did not have any drugs on his person during the officers’ search
of Sandoval’s home; and (3) none of the other individuals at Sandoval’s
home connected Bravo to the stash of methamphetamine in Sandoval’s
house. The first fact is insignificant in light of the entire record, which
permitted the district court to infer that Bravo and Sandoval had an
agreement with respect to the drugs stash. The second fact is also
insignificant, given that only one of the eight individuals at Sandoval’s home
had drugs on his person. And the third argument is baseless because the PSR
merely lists the eight people found at the residence but makes no statement
as to what those individuals—other than Sandoval—told investigators about
Bravo.
Bravo next argues that the district court erred because it did not make
an explicit finding of an agreement between Bravo and Sandoval with respect
to the stash of drugs but instead adopted the PSR’s calculation “based upon
the assumption that Bravo was a co-conspirator of Sandoval regarding the
methamphetamine found in Sandoval’s house.” As the Government notes,
Bravo cites no case that requires a district court to make an explicit finding of
conspiracy for the § 2K2.1(c)(1)(A) cross reference to apply. Bravo’s
argument also fails because the district court did implicitly find that Sandoval
and Bravo were part of a drug conspiracy. In particular, the district court
11
Case: 20-10008 Document: 00515828607 Page: 12 Date Filed: 04/20/2021
No. 20-10008
overruled Bravo’s written objections “for the reasons stated in the
Government’s Response and in the [PSR] Addendum,” and both of those
documents concluded that Sandoval and Bravo were co-conspirators.
Bravo also argues that the district court erred by relying on the PSR’s
“assumptions” to determine that he was responsible for the stash of
methamphetamine. The district court did not clearly err in relying on the
information contained in the PSR. Factual statements in a PSR are
“presumed reliable and may be adopted by the district court without further
inquiry if the defendant fails to demonstrate by competent rebuttal evidence
that the information is materially untrue, inaccurate, or unreliable.” United
States v. Sanchez, 850 F.3d 767, 769 (5th Cir. 2017) (internal quotation marks
and citation omitted). The probation officer, the Government, and the
district court all considered the information in the PSR to be reliable because
this information was obtained through a review of investigative material and
interviews with a federal agent. Bravo’s written objections and his counsel’s
arguments at sentencing failed to offer any evidence to rebut the reliability of
the information in the PSR. Thus, Bravo failed to meet his burden of
rebutting the PSR, and the district court was permitted to adopt this
information without further inquiry. See Torres-Magana, 938 F.3d at 217
(noting that the defendant bears the burden of demonstrating that the PSR’s
information is materially untrue and that the district court should not
consider a defendant’s “unsworn objections and argumentation” when
making factual findings).
IV
Because the district court did not clearly err in finding that Bravo and
Sandoval were jointly undertaking a criminal activity with respect to the
2,978 grams of methamphetamine found at Sandoval’s home, we AFFIRM.
12