USA v. Jose Santos Peru
UNPUBLISHED OPINION FILED. [16-10260 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 01/05/2017 for Appellant Jose Santos Peru [16-10260]
Date Filed: 12/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
December 15, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE SANTOS PERU,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-245-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Santos Peru was convicted of possession of methamphetamine with
intent to distribute, and he received a sentence of 180 months in prison and a
three-year term of supervised release. Now, he argues that the district court
erred by concluding that a primary purpose of his home was drug storage and
by imposing a corresponding adjustment under U.S.S.G. § 2D1.1(b)(12).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 12/15/2016
“A district court’s application of § 2D1.1(b)(12) is a factual finding
reviewed for clear error.” United States v. Haines, 803 F.3d 713, 744 (5th Cir.
2015). Thus we reject Peru’s suggestion that review is de novo. A factual
finding is not clearly erroneous when it is plausible in light of the entire record.
United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010).
The record shows that Peru stored drugs at his home on several occasions
and that these drugs were subsequently distributed. The presentence report
is generally sufficiently reliable to be considered as evidence to support fact
findings. United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010). Because
Peru presented no rebuttal evidence, the district court could properly rely on
the facts in the presentence report and adopt them as its own. United States
v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013). The record thus supports the
district court’s finding that one of the primary reasons Peru maintained the
home for was for distributing drugs. The record also shows that this finding
was plausible and was not clearly erroneous. See Ruiz, 621 F.3d at 396.
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