United States v. Sidronio Castillo-Olascuaga

Case: 16-11807 Document: 00514267921 Page: 1 Date Filed: 12/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11807
Fifth Circuit
FILED
Summary Calendar December 11, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
SIDRONIO CASTILLO-OLASCUAGA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-153-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Sidronio Castillo-Olascuaga appeals the 127-month sentence imposed
following his guilty plea conviction for conspiracy to distribute cocaine. He
argues that the district court erred in applying a firearm enhancement
pursuant to U.S.S.G. § 2D1.1(b)(1) because neither he nor his co-defendant
possessed the firearm in question. We review the district court’s interpretation
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-11807 Document: 00514267921 Page: 2 Date Filed: 12/11/2017
No. 16-11807
of the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
Though nothing in the record links the firearm to any particular
conspirator, “the evidence makes it plausible that a ‘weapon was present’ and
that one of the conspirators possessed it.” See United States v. Rodriguez-
Guerrero, 805 F.3d 192, 196 (5th Cir. 2015) (citing § 2D1.1(b)(1), comment.
(n.11(A))). As there was enough evidence to support that the weapon must
have been possessed by one of the conspirators in furtherance of the conspiracy,
the district court did not err in its factual findings or legal conclusions
underlying the firearm enhancement. See id.
Castillo-Olascuaga’s opening brief does not address his objection before
the district court concerning the availability of a safety valve adjustment. The
Government argues that Castillo-Olascuaga has waived the issue by failing to
brief it. Castillo-Olascuaga replies that the issue is not ripe for our review
because it was never ruled upon by the district court. At sentencing, the
district court noted the objections based upon the firearm enhancement and
the availability of the safety valve, overruled the objection to the firearm
enhancement, and stated that, as a consequence, Castillo-Olascuaga was not
eligible for the safety valve. As the district court ruled on the safety valve issue
and Castillo-Olascuaga does not provide any argument or analysis on that
issue, it is abandoned. See United States v. Scroggins, 599 F.3d 433, 446 (5th
Cir. 2010). The district court’s judgment is AFFIRMED.
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