United States v. Pardo-Oseguera ( 2021 )

Case: 20-40517 Document: 00515825241 Page: 1 Date Filed: 04/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 16, 2021
No. 20-40517
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Manuel Pardo-Oseguera,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:18-CR-223-7
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Juan Manuel Pardo-Oseguera pleaded guilty to conspiracy to possess
with the intent to manufacture and distribute methamphetamine and was
sentenced to 135 months in prison. Over Pardo-Oseguera’s objection, the
district court applied a two-level enhancement to his offense level pursuant
*
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opinion should not be published and is not precedent except under the limited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: 20-40517 Document: 00515825241 Page: 2 Date Filed: 04/16/2021
No. 20-40517
to U.S.S.G. § 2D1.1(b)(1) for his possession of a firearm and a two-level
enhancement under § 2D1.1(b)(12) for maintaining a premises for the
purpose of drug distribution. He now challenges both enhancements on
appeal.
The district court’s application of § 2D1.1(b)(1) and § 2D1.1(b)(12) is
a factual finding reviewed for clear error. See United States v. King, 773 F.3d
48, 52 (5th Cir. 2014); United States v. Haines, 803 F.3d 713, 744 (5th Cir.
2015). “A factual finding is not clearly erroneous if it is plausible, considering
the record as a whole.” King, 773 F.3d at 52 (internal quotation marks and
citation omitted).
For § 2D1.1(b)(1) to apply, the government must first prove the
defendant possessed the firearm, which it may do by showing the firearm was
in the same location as drugs or drug paraphernalia. See id. at 53. If the
government meets its burden, the defendant can avoid the enhancement only
“by showing that it was clearly improbable that the weapon was connected
with the offense.” Id. (internal quotation marks and citation omitted); see
also § 2D1.1, comment. (n.11(A)). Here, the Government established that a
firearm was found in Pardo-Oseguera’s home, along with a loaded magazine,
a digital scale with methamphetamine residue, and wrappings used for drugs.
Based on those facts, the district court could plausibly find that the
Government met its burden of showing that Pardo-Oseguera possessed a
firearm for purposes of § 2D1.1(b)(1). See United States v. Caicedo, 103 F.3d
410, 411-12 (5th Cir. 1997). Further, the district court’s finding that Pardo-
Oseguera did not show that it was “clearly improbable” that the firearm was
connected to the conspiracy offense is plausible. See King, 773 F.3d at 54.
Under § 2D1.1(b)(12), a defendant’s offense level may be increased
by two levels if he “knowingly maintains a premises (i.e., a building, room, or
enclosure) for the purpose of manufacturing or distributing a controlled
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Case: 20-40517 Document: 00515825241 Page: 3 Date Filed: 04/16/2021
No. 20-40517
substance, including storage of a controlled substance for the purpose of
distribution.” § 2D1.1, comment. (n.17). Pardo-Oseguera’s argument that
the district court applied the enhancement based on bare assertions and
without factual findings is unconvincing. The district court made specific
findings in support of its application of the enhancement, including that more
than 400 grams of methamphetamine were found on Pardo-Oseguera’s
property, drug paraphernalia and a firearm were found in his home, and his
home was sparsely furnished, which indicated it was being used as a “stash
house.” Based on those facts, the district court could plausibly find that
Pardo-Oseguera maintained a premises for the purpose of storing drugs for
distribution. See Haines, 803 F.3d at 744-45; see also § 2D1.1, comment.
(n.17).
In light of the foregoing, the district court did not clearly err in
applying § 2D1.1(b)(1) or § 2D1.1(b)(12). However, even if we were to
assume, arguendo, that the district court erred, any error would be harmless.
See United States v. Castro-Alfonso, 841 F.3d 292, 298-99 (2016). “We take
the district court at its clear and plain word” that it would have imposed the
same sentence even if its guidelines calculation were incorrect, and there is
no indication that the district court was improperly influenced by an
erroneous guidelines range, as it “was firm, plain, and clear in expressing [its]
reasoning” that the sentence was appropriate in light of the 18 U.S.C.
§ 3553(a) factors. Id.The district court’s judgment is AFFIRMED.
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