United States v. Garza ( 2022 )

Case: 22-10173 Document: 00516515896 Page: 1 Date Filed: 10/20/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10173
FILED
October 20, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Raul Garza,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-240-2
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Raul Garza pled guilty to one count of conspiracy to possess with
intent to distribute a mixture and substance containing a detectable amount
of methamphetamine and was sentenced to a 168-month term of
imprisonment followed by a three-year term of supervised release. On
*
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opinion should not be published and is not precedent except under the limited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.
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No. 22-10173
appeal, Garza argues that the application of the dangerous weapon
enhancement under U.S.S.G. § 2D1.1(b)(1) was clearly erroneous because
there was insufficient evidence to establish that the firearm possessed by his
coconspirator, Marvin Mendoza, was possessed in connection with Garza’s
drug trafficking activity. Garza asserts that because the drug transaction was
never fully realized and no methamphetamine was recovered, his
responsibility for the firearm found on Mendoza is too attenuated to support
the enhancement.
We review legal questions regarding the district court’s application of
Section 2D1.1(b)(1) de novo and its findings of fact for clear error. United
States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015); United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s
finding is not clearly erroneous if it was plausible in light of the record as a
whole. See Cisneros-Gutierrez, 517 F.3d at 764; United States v. Ruiz, 621 F.3d
390, 396 (5th Cir. 2010).
Before a sentencing court can apply the dangerous weapon
enhancement, the Government must prove possession by a preponderance
of the evidence. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010). “[W]hen another individual involved in the commission of an offense
possessed the weapon, the government must show that the defendant could
have reasonably foreseen that possession.” United States v. Hooten, 942 F.2d
878, 882 (5th Cir. 1991). Because firearms are “tools of the trade” for those
engaged in drug trafficking, a sentencing court may infer foreseeability of a
coconspirator’s possession of a weapon if the Government proves the
coconspirator “knowingly possessed the weapon while he and the defendant
committed the offense.” United States v. Aguilera-Zapata, 901 F.2d 1209,
1215 (5th Cir. 1990) (quotation marks and citation omitted); see Zapata-Lara,
615 F.3d at 390. If the Government makes such a showing, the burden shifts
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No. 22-10173
to the defendant to prove it was clearly improbable that the weapon was
connected to the drug trafficking activity. Ruiz, 621 F.3d at 396.
Given the facts set forth in the presentence report, which was adopted
by the district court, the Government made a sufficient showing that the
firearm was knowingly possessed by Mendoza in connection with criminal
activity jointly undertaken with Garza. See Zapata-Lara, 615 F.3d at 390–91;
Aguilera-Zapata, 901 F.2d at 1215. Thus, the district court could infer that
Garza would have reasonably foreseen Mendoza’s possession of the firearm.
See id. It was therefore Garza’s burden to prove clear improbability that
Mendoza’s weapon was connected to the jointly undertaken criminal
activity, and he failed to do so. See Zapata-Lara, 615 F.3d at 390 n.5; Ruiz,
621 F.3d at 396. Garza did not object to the factual summary of the offense
conduct in the presentence report and did not present rebuttal evidence at
sentencing. He does not dispute his connection to Mendoza, nor does he
dispute that Mendoza was knowingly in possession of a weapon.
Accordingly, the district court’s application of the dangerous weapon
enhancement was not clear error.
AFFIRMED.
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