United States v. Salinas ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2008
No. 06-41548
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RUBEN SALINAS, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-11-2
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Ruben Salinas, Jr., appeals his sentence following his guilty plea
conviction for possession with intent to distribute more than 1000 kilograms of
marijuana. Salinas argues that the district court erred by denying him the
benefit of the “safety valve” provisions of U.S.S.G. § 5C1.2 based on a finding
that he possessed a firearm in connection with the offense. The firearm in
question was found in a bedroom of a house that Salinas was using to store more
than 2,500 kilograms of marijuana. Salinas argues that he did not “possess” 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should not be published and is not precedent except under the limited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. 06-41548
firearm because it belonged to his father and it was found in his father’s
bedroom in his father’s house.
The defendant has the burden of showing that he is entitled to a
safety-valve adjustment. United States v. McCrimmon, 443 F.3d 454, 457 (5th
Cir.), cert. denied, 547 U.S. 1120 (2006). The district court’s application of the
safety valve is reviewed for clear error. Id. Possession of a firearm may be
“actual” or “constructive” and may be proven by circumstantial evidence. United
States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999). This court applies “a
common sense, fact-specific approach” to a determination whether constructive
possession exists. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).
Although Salinas asserts that the firearm belonged to his father, whether
the firearm was accessible is relevant to possession inquiry, not its ownership.
See United States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994). The fact that
Salinas knew where the firearm could be found also suggests he had access to
it. See United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003). We also
note that Salinas’s ability to store such a large quantity of marijuana at the
house, allegedly without his father’s knowledge, suggests he had some degree of
“dominion or control over the premises.” United States v. Matias, 465 F.3d 169,
173 (5th Cir. 2006).
Salinas also argues that the firearm was not connected to his offense
because it was not stored near the marijuana and it was unloaded. This court
has held that, “despite any difference in semantics between U.S.S.G.
§ 2D1.1(b)(1) and § 5C1.2(2), the two provisions should be analyzed analogously.”
United States v. Vasquez, 161 F.3d 909, 913 (5th Cir. 1998). The Sentencing
Guidelines provide that the weapons enhancement “should be applied if the
weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.” § 2D1.1(b)(1) comment (n.3). A connection with the
offense may be shown with “evidence that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
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transaction occurred.” United States v. Jacquinot, 258 F.3d 423, 430 (5th Cir.
2001) (internal quotation marks and citation omitted).
Salinas asserts that the firearm was not sufficiently connected to his
offense because it was owned by his father to protect his home; however, even
if a weapon may have some other legitimate intended use, the relevant inquiry
is whether the weapon could have been used in connection with the drug offense.
See United States v. Menesses, 962 F.2d 420, 429 (5th Cir. 1992). Salinas’s
argument that the firearm was stored too far away from the marijuana is
unpersuasive. See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005);
United States v. Navarro, 169 F.3d 228, 230, 235 (5th Cir. 1999). Salinas’s
argument that the firearm was unloaded also is unpersuasive. See Jacquinot,
258 F.3d at 431; United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997).
Salinas also argues that the district court erred by finding that a co-
conspirator could have used the firearm and that a co-conspirator’s possession
of a firearm may be imputed to a defendant to deny relief under § 5C1.2. It is
unclear whether a finding of co-conspirator possession was the basis for the
district court’s ruling. This court has held that it is error to deny § 5C1.2 relief
based on a finding that a co-conspirator possessed a firearm. See United States
v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997). However, even if the district court
so erred, we affirm Salinas’s sentence because the record shows that he had
constructive possession of the firearm. See United States v. Grosz, 76 F.3d 1318,
1324 n. 6 (5th Cir. 1996); Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992).
AFFIRMED.
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