United States v. Lopez , 254 F. App'x 349 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2007
No. 06-41592
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE CRUZ LOPEZ, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-537
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges
PER CURIAM:*
Jose Cruz Lopez, Jr., pleaded guilty to one count of possession of less than
50 kilograms of marijuana, in violation of 21 U.S.C. § 841. Lopez objected prior
to sentencing to the lack of a downward adjustment for a minor or minimal
participant role under U.S.S.G. § 3B1.2, and to the imposition of a two-level
enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). The
*
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should not be published and is not precedent except under the limited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.
No. 06-41592
district court overruled his objections and sentenced him to 27 months in prison,
within the sentencing guidelines range. Lopez appeals, and we affirm.
Whether a defendant is a minor or minimal participant is a factual
determination reviewed for clear error. United States v. Villanueva, 408 F.3d
193, 203 & n.9 (5th Cir. 2005). A § 3B1.2 reduction applies only when a
defendant is substantially less culpable than the average participant. Id. The
defendant’s role is not evaluated in reference to the entire enterprise but in
relation to the conduct for which the defendant was held accountable. United
States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001). Given (1) that Lopez was
responsible for packaging marijuana for another person on three occasions,
(2) the statement in the factual basis that he was seen delivering one of the
packages to the Post Office, and (3) the quantity of drugs involved, the district
court did not clearly err in concluding that a § 3B1.2 adjustment was not
warranted.
With respect to the § 2D1.1 enhancement, we again review for clear error.
See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005). The Government
must demonstrate “by a preponderance of the evidence that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and
the defendant.” Id. The enhancement should be applied unless it is clearly
improbable that there was a connection between the weapon and the
enhancement. Id.
Although there was a two-year gap in time between the last identified
mailed package and the finding of the weapon, the weapon was located next to
an express mail package like the ones used previously, and the court found
Lopez’s claim of fear of home invasion not credible. Thus, we cannot say that the
district court clearly erred. In any event, any error would not require reversal.
The district court stated that it would impose the same sentence of 27 months
even without the enhancement based on Lopez’s criminal history. Absent any
indication that the sentence was unreasonable, see United States v. Smith,
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No. 06-41592
440 F.3d 704, 707-08 (5th Cir. 2006), we may affirm the district court’s
alternative ruling that the sentence would be the same notwithstanding the
weapons enhancement. See United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th
Cir. 2006).
The judgment of the district court is AFFIRMED.
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