United States v. Maldonado ( 2022 )

Case: 21-10533 Document: 00516369501 Page: 1 Date Filed: 06/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2022
No. 21-10533 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Salahuddin Rasuz Maldonado,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC 4:20-CR-98-3
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Salahuddin Rasuz Maldonado pled guilty to one count of conspiring
to possess firearms in furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(o). Following the Presentence Report (PSR), the district court
enhanced Maldonado’s sentence by four levels under U.S.S.G.
*
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opinion should not be published and is not precedent except under the limited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: 21-10533 Document: 00516369501 Page: 2 Date Filed: 06/24/2022
No. 21-10533
§ 2K2.1(b)(6)(B) because he possessed firearms “in connection with another
felony offense, to wit: drug-trafficking.” The court then sentenced
Maldonado to 70 months of imprisonment and three years of supervised
release.
On appeal, Maldonado challenges the district court’s application of
§ 2K2.1(b)(6)(B). “Because [he] preserved this argument in the district
court, we review the application of the Guidelines de novo and the district
court’s factual findings—along with the reasonable inferences drawn from
those facts—for clear error.” United States v. Alcantar, 733 F.3d 143, 146 (5th
Cir. 2013).
Maldonado was convicted under 18 U.S.C. § 924(o), which makes it
a crime to “conspire[] to commit an offense under” 18 U.S.C. § 924(c). And
§ 924(c) prohibits, inter alia, the possession of a firearm in furtherance of a
drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). Thus, § 924(o) creates a
standalone conspiracy offense that does not require proof that the defendant
committed the underlying substantive crime—i.e., possession of a firearm in
furtherance of drug trafficking. See United States v. McClaren, 13 F.4th 386,
414 (5th Cir. 2021) (holding a § 924(o) conviction merely requires proof
“that [d]efendants agreed to violate . . . § 924(c), knew of the agreement’s
unlawful purpose, and joined in it willfully with the intent to further that
purpose”).
Under § 2K2.1(b)(6)(B), the Guideline applicable to § 924(o), a
defendant is subject to a four-level enhancement if he “used or possessed any
firearm or ammunition in connection with another felony offense.” The
relevant application note defines “another felony offense” as “any federal,
state, or local offense, other than the explosive or firearms possession or trafficking
offense, punishable by imprisonment for [more than] one year, regardless of
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G.
2
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§ 2K2.1 cmt. n.14(C) (emphasis added). Importantly, the note’s “other
than” clause “excludes from the definition of ‘another felony offense’ only
the [firearms] possession . . . offense that serves as the basis for the
defendant’s conviction.” United States v. Juarez, 626 F.3d 246, 255 (5th Cir.
2010).
Maldonado does not dispute that he engaged in drug trafficking, or
that such conduct amounts to a felony offense. 1 Instead, he asserts that the
§ 2K2.1(b)(6)(B) enhancement was improper because it was not based on
“another felony offense,” but on the same offense underlying his § 924(o)
conviction. We disagree.
This court recently addressed a similar challenge in United States v.
Singletary, 29 F.4th 313 (5th Cir. 2022). In Singletary, the defendant was
convicted under § 924(o) “for conspiring to possess guns (i.e., make straw
purchases) to help drug dealers.” Id. at 316. The district court enhanced his
sentence under § 2K2.1(b)(6)(B) because the firearms were actually used “to
protect or aid in the drug trafficking activity of the distributors.” Id. Like
Maldonado, the defendant asserted on appeal that “he was wrongly
enhanced for the same offense he was convicted of.” Id. We rejected that
argument, holding that the drug dealing of the distributors qualified as
“another felony offense” for purposes of § 2K2.1(b)(6)(B). Id. Though the
defendant’s conviction and enhancement covered the same underlying
conduct, the supporting offenses were “distinct.” Id.
1
As the Government points out, “Maldonado did not challenge the factual findings
in the PSR,” which the district court adopted. And he “does not dispute the factual basis
for [his] enhancement on appeal.” The PSR establishes, among other things, that
Maldonado sold drugs to a confidential informant and, when arrested several days later,
possessed multiple firearms as well as a distributable quantity of drugs. Further, in his
factual resume submitted to the district court, Maldonado admitted that he “sold illegal
drugs, and used and possessed firearms in furtherance of . . . drug trafficking activities.”
3
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No. 21-10533
The same is true here. Maldonado was convicted of conspiring to
possess a firearm in furtherance of a drug trafficking crime. But his sentence
was enhanced under § 2K2.1(b)(6)(B) because he actually possessed a
firearm in connection with drug trafficking. In other words, the “[]other
felony offense,” id., for purposes of § 2K2.1(b)(6)(B)’s enhancement was
not the conspiracy, but rather Maldonado’s commission of a substantive drug
trafficking crime. Because substantive drug trafficking constitutes an offense
“other than the . . . firearms possession . . . offense” that served as the basis
of Maldonado’s conviction (i.e., conspiracy to possess a firearm in
furtherance of a drug trafficking crime), the district court did not err in
applying a four-level enhancement under § 2K2.1(b)(6)(B).
Accordingly, the judgment of the district court is AFFIRMED.
4