United States v. David Torres-Avalos

Case: 10-40658 Document: 00511604764 Page: 1 Date Filed: 09/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2011
No. 10-40658
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID JHONATAN TORRES-AVALOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-1619-1
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Jhonatan Torres-Avalos (Torres) pleaded guilty to being an illegal
alien in possession of a firearm. See 18 U.S.C. §§ 922(g), 924(a)(2). He was
sentenced to 78 months of imprisonment. He argues that the district court erred
in applying the cross-referencing provision in U.S.S.G. § 2K2.1(c) based on his
possession of a firearm “in connection with” a drug trafficking offense.
Police officers observed Torres purchase six tubes of grease and transport
them to a house. One of the officers knew from experience and training that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-40658
large amount and type of grease was consistent with activity associated with the
packaging of drugs for shipment. The officers followed Torres to the house,
where he stayed for approximately one hour. When Torres left the house, the
officers stopped him for a traffic violation. Torres could not provide
identification and gave a false name and date of birth. When the officers asked
Torres what he had been doing immediately before they stopped him, he gave
answers inconsistent with the activity the officers had witnessed. Upon request,
Torres gave the officers consent to search his vehicle and agreed to guide them
back to the aforementioned house. During a pat-down search of Torres, the
officers found a Kel Tec .380 caliber pistol in his boot; the firearm was loaded
with six rounds of ammunition.
Upon return to the house, the owner, Heriberto Hernandez, gave the
officers consent to search. Once inside, the officers found that it was a one-room,
uninhabitable building. Inside of compartments in two tractor-trailers parked
behind the house, the officers found approximately 25 kilograms of cocaine; they
also found on the property a Ruger .45 caliber revolver. The officers took
Hernandez into custody. Fingerprints revealed Torres’s identity as David
Torres, an alien who had been previously deported on September 25, 2007.
Torres admitted that he was in the United States illegally and that he had
previously been removed. Torres said he acquired the Kel Tech pistol from a
woman at a gun show and that he did not fill out any forms in connection with
the purchase. Torres explained that he purchased the weapon for personal
protection.
In calculating Torres’s guidelines sentencing range, the probation officer
used the cross referencing provision in § 2K2.1(c)(1)(A), which directs the use of
§ 2X1.1. The use of the cross-referencing provision significantly increased
Torres’s base offense level. He challenges the use of the cross-referencing
provision, arguing that the “functional nexus” required by § 2K2.1(c) is lacking
because the Kel Tec in his boot “was at least as attenuated functionally as it was
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No. 10-40658
physically from the drugs in the hidden compartments in the tractor-trailers.”
United States v. Mitchell, 166 F.3d 748 (5th Cir. 1999). According to Torres, the
Government did not prove that he had anything to do with the tractor-trailers,
and there was no evidence that grease was used to hide or disguise any of the
drugs in the tractor-trailers.
Viewing the evidence as a whole, we are not persuaded that the district
court erred in applying the cross-reference provision. Torres, who was found to
be carrying a loaded firearm in his boot, purchased items that are consistent
with the packaging and shipment of drugs, delivered the items to an
uninhabitable house (stash house) where 25 kilograms of cocaine were concealed
nearby, spent an hour in the structure, and then, when questioned about his
activities, made statements that were inconsistent with what the officers had
witnessed. His inconsistent statements are inherently suspicious and may be
“the strongest evidence” of his guilty knowledge. See United States v. Diaz-
Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990). His possession of the pistol while
in the house was not too geographically, spatially, functionally, or logically
remote from his constructive possession of cocaine with the intent to distribute
it. See Mitchell, 166 F.3d at 753-56. On the contrary, the pistol “facilitated, or
had the potential of facilitating . . . another offense,” (i.e., possession with intent
to distribute cocaine). § 2K2.1 cmt. n.14(A) (2008); see United States v. Jeffries,
587 F.3d 690, 692-93 (5th Cir. 2009). Finally, it is not plausible that the owner
of the 25 kilograms of cocaine would ask Torres to deliver grease to the stash
house or to work on the tractor-trailers if Torres was not a part of the conspiracy
to possess with the intent to distribute the large and valuable load of cocaine.
AFFIRMED.
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