USA v. William Orozco

Filing

UNPUBLISHED OPINION FILED. [16-11503 Affirmed] Judge: CES, Judge: EGJ, Judge: EHJ. Mandate pull date is 07/28/2017 for Appellant William Joseph Orozco [16-11503]

Case: 16-11503

Document: 00514064204

Page: 1

Date Filed: 07/07/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11503
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 7, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIAM JOSEPH OROZCO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-118-3

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
William Joseph Orozco pleaded guilty to one count of conspiracy to
possess with intent to distribute methamphetamine and was sentenced below
the advisory guidelines range to 210 months of imprisonment and a three-year
term of supervised release. Orozco argues on appeal that the district court
erred by applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for
possession of a dangerous weapon, namely a firearm.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11503

Document: 00514064204

Page: 2

Date Filed: 07/07/2017

No. 16-11503
The “district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings . . . are reviewed for
clear error. There is no clear error if the district court’s finding is plausible in
light of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008) (internal quotation marks and footnote omitted).
While it is undisputed that Orozco preserved his argument by objecting on the
same grounds below, the parties disagree as to whether the argument concerns
the district court’s factual findings or the district court’s application of the
Guidelines. See id. We need not resolve the issue because Orozco’s argument
fails regardless of whether review is for clear error or de novo.
Because there is no indication in the record that Orozco personally
possessed a firearm, the Government must demonstrate that “another
individual involved in the commission of [the] offense possessed the weapon,”
and that Orozco “could have reasonably foreseen that possession.” Id. at 76465 (internal quotation marks and footnote omitted). “[B]ecause firearms are
tools of the trade of those engaged in illegal drug activities, a district court may
ordinarily infer that a defendant should have foreseen a co-defendant’s
possession of a dangerous weapon” where “the government demonstrates that
another participant knowingly possessed the weapon while he and the
defendant committed the offense by jointly engaging in concerted criminal
activity involving a quantity of narcotics sufficient to support an inference of
an intent to distribute.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010) (internal quotation marks and citation omitted).

Further, the

“amount of drugs [involved] . . . and their street value increase the
likelihood―and thus foreseeability―that those involved in the conspiracy will
have dangerous weapons.” Cisneros-Gutierrez, 517 F.3d at 766.

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Case: 16-11503

Document: 00514064204

Page: 3

Date Filed: 07/07/2017

No. 16-11503
While Orozco argues that he could not have reasonably foreseen the
knowing possession of a firearm by his coconspirator John Phillip Ishak, Jr.,
the undisputed facts do not support his argument. Orozco’s own residence was
frequently used to store and sell methamphetamine, Orozco and Ishak engaged
in several drug runs together, and Ishak visited Orozco’s residence on at least
six occasions with drugs and a firearm. Given that, Ishak’s knowing possession
of the firearm was reasonably foreseeable to Orozco for purposes of applying
the § 2D1.1(b)(1) enhancement. See Cisneros-Gutierrez, 517 F.3d at 765-66.
AFFIRMED.

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