United States v. Teresa Sidon , 695 F. App'x 68 ( 2017 )

Case: 16-11533 Document: 00514110827 Page: 1 Date Filed: 08/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11533 FILED
Summary Calendar August 10, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERESA SIDON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-122-7
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Teresa Sidon appeals her below-guideline sentence imposed following
her guilty-plea conviction of conspiracy to money launder. She challenges the
district court's application of a sentencing enhancement under U.S.S.G.
§ 2D1.1(b)(1) (2015) for possession of a firearm, arguing that the Government
failed to prove a spatial and temporal connection between her and the firearms
or that she had access to the firearms.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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The district court’s determination that the § 2D1.1(b)(1) enhancement
applies is a factual finding reviewed for clear error. United States v. Romans,
823 F.3d 299, 317 (5th Cir.), cert. denied, 137 S. Ct. 195 (2016). An argument
that “does not concern the specifics of the factfinding, but, rather, whether the
facts found are legally sufficient to support the enhancement,” is reviewed de
novo. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
Section 2D1.1 provides for a two-level enhancement of a defendant's
offense level “[i]f a dangerous weapon (including a firearm) was possessed.”
§ 2D1.1(b)(1). “[T]he government must prove weapon possession by a
preponderance of the evidence.” Zapata-Lara, 615 F.3d at 390. If the
Government satisfies this burden, then the defendant has the burden of
showing that it is clearly improbable that the weapon was connected to the
offense. Id. at 391 n.5; see § 2D1.1(b)(1), comment. (n.11(A)).
Here, the application of the enhancement was not based on Sidon’s
possession of a firearm. Thus, her arguments regarding the Government’s
failures to make a temporal and spatial connection and to show that she had
access to the firearms are unavailing. See Zapata-Lara, 615 F.3d at 390. She
does not argue that the Government failed to prove that the possession of
firearms by her co-conspirator—for whom she was laundering money and from
whom she occasionally obtained methamphetamine to sell—was reasonably
foreseeable to her. See id.; see also United States v. Hooten, 942 F.2d 878, 882
(5th Cir. 1991). The district court did not err in applying the enhancement.
Next, Sidon argues that the application of the firearm enhancement
violated her due process rights because the “clearly improbable” phrase in
Comment 11 of the Application Notes to § 2D1.1 impermissibly shifted the
burden of proof to her by ignoring the Government’s obligation to prove the
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No. 16-11533
applicability of the sentencing enhancement. This argument is foreclosed. See
United States v. Ortiz-Granados, 12 F.3d 39, 41 (5th Cir. 1994).
The judgment of the district court is AFFIRMED.
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