USA v. David Zavala, Jr.


UNPUBLISHED OPINION FILED. [10-20256 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 01/19/2011 for Appellant David Zavala Jr. [10-20256]

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USA v. David Zavala, Jr. e: 10-20256 Cas Document: 00511334861 Page: 1 Date Filed: 12/29/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-20256 S u m m a r y Calendar December 29, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A V I D ZAVALA, JR., D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-543-3 B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* D a v id Zavala, Jr., was convicted of one charge of conspiracy to commit r o b b e r y and was sentenced to serve 46 months in prison and a three-year term o f supervised release. In this appeal, he challenges his sentence, arguing that t h e district court erred by determining that he constructively possessed a fir e a r m during the offense and imposing a corresponding sentencing adjustment. W h e n analyzing such challenges, Gall v. United States, 552 U.S. 38, 51 (2 0 0 7 ), instructs us to determine whether the sentence imposed is procedurally 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20256 Document: 00511334861 Page: 2 Date Filed: 12/29/2010 No. 10-20256 s o u n d , including whether the calculation of the advisory guidelines range is c o r r e c t . We review the district court's interpretation and application of the S e n te n c in g Guidelines de novo and its findings of fact for clear error. United S ta te s v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). O u r analysis shows no procedural error in connection with Zavala's s e n te n c e . Insofar as he argues that the adjustment was improper because the fir e a r m was possessed by a cooperating individual, this argument is refuted by t h e record, which shows another individual also possessed it. To the extent he c o n t e n d s that he could not have reasonably foreseen the use of a firearm during t h e robbery, this assertion is undermined by those portions of the record showing t h a t the conspirators held a meeting and discussed using a firearm to rob an a r m o r e d truck. Additionally, these parts of the record show that the district c o u r t's conclusion regarding Zavala's constructive possession of the firearm is p la u s ib le and thus is not clearly erroneous. See Cisneros-Gutierrez, 517 F.3d at 764. A F F IR M E D . 2

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