United States v. Brewer ( 2023 )

Case: 22-10344 Document: 00516697216 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10344
Summary Calendar FILED
____________ March 31, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ronald Wayne Brewer,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:21-CR-32-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Ronald Wayne Brewer appeals the 135-month sentence imposed by
the district court following his guilty plea conviction for conspiracy to possess
with intent to distribute a mixture or substance containing a detectable
amount of methamphetamine.
_____________________
*
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should not be published and is not precedent except under the limited circumstances set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. 22-10344
First, Brewer argues that the district court erred by imposing the two-
level enhancement under U.S.S.G. § 2D1.1(b)(1) based on his co-
conspirator’s possession of a firearm without evidence that he could have
reasonably foreseen that his co-conspirator would be in possession of the
firearm. Where such a claim of sentencing error has been preserved, we
review the district court’s interpretation of the Guidelines de novo and its
factual findings for clear error. See United States v. Barry, 978 F.3d 214, 217
(5th Cir. 2020). We need not decide whether Brewer preserved this claimed
error because, even if we assume it was preserved, his challenge fails. See
United States v. Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016).
Section 2D1.1(b)(1) establishes a two-level enhancement for those
convicted of a drug-trafficking offense “[i]f a dangerous weapon (including a
firearm) was possessed[.]” § 2D1.1(b)(1). Where the weapon was possessed
not by the defendant but by “another individual involved in the commission
of an offense . . . , the Government must show that the defendant could have
reasonably foreseen that possession.” United States v. Cisneros-Gutierrez,
517 F.3d 751, 765 (5th Cir. 2008) (internal quotation marks and citation
omitted). Whether a co-conspirator’s or co-defendant’s possession of a
firearm was reasonably foreseeable to a defendant is a factual finding
reviewed for clear error. See id. at 765-66; United States v. Chavez, 119 F.3d
342, 348 (5th Cir. 1997).
In this case, officers observed a vehicle, driven by Brewer’s co-
conspirator, leave Brewer’s residence and continue to a parking lot, where
Brewer exited the vehicle to speak to the driver of another vehicle. When
Brewer returned to the co-conspirator’s vehicle, Brewer was arrested.
Brewer was carrying a plastic baggie containing methamphetamine, and
officers located a digital scale in his possession. In addition, a plastic baggie
containing methamphetamine was found in the center console of the co-
conspirator’s vehicle, and an empty handgun holster was located under the
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No. 22-10344
driver’s seat. During a search of the co-conspirator, the officers located a 9-
millimeter pistol in his waistband, and the magazine was loaded with 10
rounds. Following the arrest, Brewer admitted that he had conducted a drug
transaction in the parking lot and that he and his co-conspirator had been
headed to a dope house.
During the sentencing hearing, Brewer’s counsel conceded that
Brewer and the co-conspirator were engaged in jointly undertaken criminal
activity from the time they got into the co-conspirator’s vehicle until their
arrest. The district court found that the co-conspirator’s possession of the
firearm was within the scope of the jointly undertaken criminal activity and
that it was reasonably foreseeable to Brewer that his co-conspirator would
have the firearm. Based on this record, the district court did not clearly err
in finding that the co-conspirator’s possession of the firearm was reasonably
foreseeable to Brewer. See Cisneros-Gutierrez, 517 F.3d at 765-66; Chavez,
119 F.3d at 348; see also United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010) (“[B]ecause firearms are tools of the trade of those engaged in
illegal drug activities, a district court may ordinarily infer that a defendant
should have foreseen a co-defendant’s possession of a dangerous weapon”
where “the government demonstrates that another participant knowingly
possessed the weapon while he and the defendant committed the offense by
jointly engaging in concerted criminal activity involving a quantity of
narcotics sufficient to support an inference of an intent to distribute.”
(internal quotation marks and citation omitted)).
Second, Brewer argues that the district court erred by treating the
Sentencing Guidelines as mandatory rather than advisory. Because Brewer
filed a motion for a downward variance based on a policy disagreement with
the treatment of methamphetamine under the Guidelines, we regard this
claim as preserved and review for an abuse of discretion. See United States v.
Gozes-Wagner, 977 F.3d 323, 338-39 (5th Cir. 2020). During the sentencing
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hearing, the district court acknowledged that it had the discretion to vary
from the Guidelines based on the policy disagreement that Brewer had raised,
but it declined to do so. See United States v. Malone, 828 F.3d 331, 340 (5th
Cir. 2016). Accordingly, the district court did not abuse its discretion. See
Gozes-Wagner, 977 F.3d at 340.
The district court’s judgment is AFFIRMED.
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