United States v. Lozano ( 2023 )

Case: 22-50753 Document: 00516928840 Page: 1 Date Filed: 10/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 12, 2023
No. 22-50753
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Raul Lozano, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-66-1
______________________________
Before Smith, Southwick, and Higginson, Circuit Judges.
Per Curiam:*
Victor Raul Lozano, Jr. pleaded guilty to possession of ammunition by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and
was sentenced to a within-guidelines sentence of 46 months of imprisonment.
On appeal, Lozano argues that the district court erred by applying an
enhanced offense level under U.S.S.G. § 2K2.1(a)(4)(B) upon the finding
that he constructively possessed a large-capacity handgun.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50753 Document: 00516928840 Page: 2 Date Filed: 10/12/2023
No. 22-50753
We review a district court’s interpretation or application of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). Clear error review
is “deferential,” and a factual finding needs “only . . . to be plausible in light
of the record as a whole” to be upheld. United States v. Abrego, 997 F.3d 309,
312 (5th Cir. 2021) (internal quotation marks and citation omitted).
The Government has the burden to demonstrate, “by a
preponderance of the evidence, the facts necessary to support an elevated
base offense level.” United States v. Luna-Gonzalez, 34 F.4th 479, 480 (5th
Cir. 2022). In general, a presentence report (PSR) “bears sufficient indicia
of reliability to be considered as evidence by the sentencing judge in making
factual determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir.
2010) (internal quotation marks and citation omitted). Therefore, a district
court may adopt, without further inquiry, the facts contained in a PSR to
support an offense level enhancement. United States v. Rome, 207 F.3d 251,
254 (5th Cir. 2000). If the defendant challenges the facts presented in the
PSR, he has the burden of showing that they are “materially untrue,
inaccurate or unreliable.” Abrego, 997 F.3d at 312 (internal quotation marks
and citation omitted). Such challenges substantiated only by “unsworn
assertions . . . are unreliable and should not be considered.” United States v.
Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).
Based on the facts presented in the PSR, there was “at least a plausible
inference that [Lozano] had knowledge of and access to” the large-capacity
handgun at issue, as was the required showing here for constructive
possession. United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003)
(internal quotation marks and citation omitted); see also United States v.
Prudhome, 13 F.3d 147, 149 (5th Cir. 1994) (reviewing a challenge to the
sufficiency of the evidence and stating that the evidence supported an
inference of constructive possession of the firearm in the vehicle because the
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Case: 22-50753 Document: 00516928840 Page: 3 Date Filed: 10/12/2023
No. 22-50753
defendant “was driving, the gun was located directly under his seat, and he
had three rounds of matching ammunition in his waist pouch”). Lozano’s
unsworn assertions to the contrary were not sufficient to rebut the reliable
evidence presented in the PSR which supported the district court’s factual
findings. Lghodaro, 967 F.2d at 1030.
AFFIRMED.
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