United States v. Jose Roman

Case: 17-41172 Document: 00514791184 Page: 1 Date Filed: 01/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-41172 January 11, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ROMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-876-8
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Roman (Roman) appeals his 120-month sentence of imprisonment
imposed following his guilty plea to conspiracy to possess with intent to
distribute five kilograms or more of cocaine. Roman argues that the district
court clearly erred by enhancing his offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1) based on his coconspirator’s alleged possession of firearms in
furtherance of the conspiracy. He contends that the district court misapplied
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41172 Document: 00514791184 Page: 2 Date Filed: 01/11/2019
No. 17-41172
the Guidelines by making a general presumption that firearms are “tools of the
trade” and that it is always foreseeable that they will be used during criminal
drug activity. Additionally, he contends that he rebutted the evidence
presented by the Government that overcame the inference of foreseeability
and, thus, he showed that it was clearly improbable that the firearms found
were connected to the drug offense.
The district court’s application of the Guidelines is reviewed de novo, and
its fact-finding in support of a sentencing enhancement is reviewed for clear
error. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). The
findings will be affirmed if plausible given the record on the whole. Id. The
enhancement applies if a defendant possessed a “dangerous weapon (including
a firearm)” during drug offense conduct. § 2D1.1(b)(1).
The Government has the initial burden to show by a preponderance of
the evidence that Roman’s coconspirator possessed the firearms to be used in
connection with drug trafficking and that Roman could have foreseen that
possession and use. See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010). The Government made that showing by providing evidence that
coconspirator Rodrigo Roman (Rodrigo) possessed weapons and ammunition in
his residence where agents discovered $48,000 in currency along with 4.72
kilograms of cocaine found concealed in a vehicle parked on Rodrigo’s property.
Based on the Government’s investigation, evidence was provided that Roman
and Rodrigo were part of a large drug trafficking conspiracy in which they
participated by storing and delivering large amounts of cocaine and currency.
The district court’s comments at sentencing showed that, in making its
determination, it relied on that evidence and not solely on a presumption that
the use of firearms in drug trafficking is always foreseeable.
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No. 17-41172
Roman was required to provide rebuttal evidence showing that “it was
clearly improbable” that the weapons discovered in his coconspirator’s house
were connected with the drug trafficking activity. See United States v. Ruiz,
621 F.3d 390, 396 (5th Cir. 2010) (internal quotation marks and citation
omitted). His alleged lack of knowledge of the presence of the firearms was not
a factor because the relevant inquiry is whether such possession was
reasonably foreseeable to him. See United States v. Aguilar-Zapata, 901 F.2d
1209, 1215 (5th Cir. 1990). Additionally, the fact that the firearms were not
located in the same specific location as the drugs and currency is not
controlling because the dispositive issue is whether the firearms were
accessible to protect the drugs and currency. See United States v. Rodriguez,
62 F.3d 723, 725 (5th Cir. 1995). Further, the significant amounts of drugs
and money involved in the conspiracy increased the likelihood, and therefore
the foreseeability, that those involved in the conspiracy will have dangerous
weapons. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.
2008). Roman failed to provide any rebuttal evidence showing that Rodrigo’s
possession of the firearms was not related to facilitating the drug-trafficking
activities and that such use was not reasonably foreseeable to him. See Ruiz,
621 F.3d at 396.
The district court’s factual findings were plausible based on the entire
record, and, therefore, the findings were not clearly erroneous. See Rodriguez,
630 F.3d at 380. The district court did not err in making the two-level
enhancement pursuant to § 2D1.1(b)(1); therefore, the judgment of the district
court is AFFIRMED.
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