United States v. Gilbert Serrano, Jr.

Case: 09-11189 Document: 00511215982 Page: 1 Date Filed: 08/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2010
No. 09-11189
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GILBERT SERRANO, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-71-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gilbert Serrano, Jr., pled guilty to a single count of possession with intent
to distribute a controlled substance. The district court departed upwardly from
the applicable guidelines sentencing range and sentenced Serrano to 180 months
of imprisonment and a five-year term of supervised release. Serrano timely
appealed.
Serrano argues that the district court inappropriately departed based on
U.S.S.G. §§ 5K2.6 and 5K2.17. The district court found that either provision
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11189 Document: 00511215982 Page: 2 Date Filed: 08/26/2010
No. 09-11189
independently justified a departure. The record reflects that the district court
departed under Section 5K2.6 based on its determination that the number and
nature of the weapons, as well as their proximity to small children, was not
adequately accounted for by the two-level increase for weapon possession under
U.S.S.G. § 2D1.1(b)(1). As the increase found at Section 2D1.1(b)(1) is triggered
by the mere possession of any dangerous weapon, such possession encompasses
the heartland of offense characteristics accounted for in Section 2D1.1. The
district court found that the substantial distinction between mere possession of
any weapon and the possession of numerous semi-automatic weapons, some of
them loaded with large amounts of ammunition in close proximity to small
children, took this case out of the heartland of Section 2D1.1(b)(1). The district
court acted within its wide discretion in departing upwardly under
Section 5K2.6. See United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006).
That being the case, we do not reach the departure under Section 5K2.17.
Serrano also challenges the extent of the departure, from an advisory
range of 120 to 135 months up to 180 months. In addition, to the extent and
nature of Serrano’s possession of illegal narcotics and firearms in his family’s
home, the district court cited as its reasons for the extent of the departure the
need to achieve the objectives of punishment, deterrence, and protection of the
public. Under the facts of this case, and given the district court’s wide discretion
in fashioning a sentence, neither the degree of departure nor the sentence as a
whole is unreasonable. United States v. Rajwani, 476 F.3d 243, 250 (5th Cir.),
modified on other grounds, 479 F.3d 904 (5th Cir. 2007).
AFFIRMED.
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