USA v. Mario Herrera

Filing

UNPUBLISHED OPINION FILED. [16-11468 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 05/23/2017 for Appellant Mario Ulises Herrera [16-11468]

Case: 16-11468

Document: 00513975827

Page: 1

Date Filed: 05/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-11468
Summary Calendar

FILED
May 2, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO ULISES HERRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-107-2
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Mario Ulises Herrera appeals his below-guideline sentence for his guiltyplea conviction

of

methamphetamine.

conspiracy

to

possess

with

intent

to

distribute

He challenges the district court’s application of a

sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a
firearm.

Herrera argues that he could not reasonably foresee that a co-

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11468

Document: 00513975827

Page: 2

Date Filed: 05/02/2017

No. 16-11468
conspirator possessed firearms and that there was no spatial and temporal
relationship between himself and the firearms.
This court reviews de novo the district court’s legal application of
§ 2D1.1(b)(1). United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
This court reviews the district court’s factual findings for clear error. United
States v. King, 773 F.3d 48, 52 (5th Cir. 2014). Section 2D1.1 provides for a
two-level enhancement of a defendant’s offense level “[i]f a dangerous weapon
(including a firearm) was possessed.” § 2D1.1(b)(1). “The enhancement should
be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” § 2D1.1(b)(1), comment. (n.11(A)).
“[T]he government must prove weapon possession by a preponderance of the
evidence.” Zapata-Lara, 615 F.3d at 390. If the Government satisfies this
burden, then the defendant has the burden of showing that it is clearly
improbable that the weapon was connected to the offense. Id. at 391 n.5.
Where, as here, “another individual involved in the commission of an
offense possessed the weapon, the government must show that the defendant
could have reasonably foreseen that possession.” Id. at 390 (internal quotation
marks and citation omitted). A defendant involved in a “jointly undertaken
criminal activity” is responsible for “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B).

Sentencing courts may therefore often infer

foreseeability from a co-conspirator’s knowing possession of a weapon. See
Zapata-Lara, 615 F.3d at 390.
Herrera’s arguments lack merit. To the extent that he challenges the
district court’s factual findings underlying the enhancement, the court’s
findings are supported by the presentence report, of which Herrera has
advanced no reason to doubt the reliability. See United States v. Ollison, 555

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Document: 00513975827

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No. 16-11468
F.3d 152, 164 (5th Cir. 2009). The district court did not err in concluding that
Herrera reasonably foresaw a co-conspirator’s possession of the firearms.
Although Herrera contends otherwise, it is immaterial that he was not present
when the firearms were discovered and that he was not arrested along with a
co-conspirator. See United States v. Rodriguez-Guerrero, 805 F.3d 192, 196
(5th Cir. 2015). Herrera’s reasonable foreseeability is supported by (1) his level
of involvement in an extensive drug conspiracy, (2) his frequent drug
transactions at the residence of a co-conspirator, (3) his delivery of drugs with
that co-conspirator, and (4) the discovery of the firearms at the residence of
that co-conspirator during a time period in which Herrera was engaging in
these drug transactions. See id.; see also United States v. Cisneros-Gutierrez,
517 F.3d 751, 766 (5th Cir. 2008); United States v. Dixon, 132 F.3d 192, 202
(5th Cir. 1997).
AFFIRMED.

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