Case: 10-10188 Document: 00511412534 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2011
No. 10-10188
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GABRIEL HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-115-16
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gabriel Hernandez appeals the 78-month sentence imposed after he
pleaded guilty to possession with intent to distribute methamphetamine. We
affirm.
Hernandez first contends that his offense level was improperly increased
for the possession of a firearm by a coconspirator. We review only for plain error
because Hernandez did not object to the increase in the district court. See
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). The uncontested facts
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10188 Document: 00511412534 Page: 2 Date Filed: 03/16/2011
No. 10-10188
recounted in the presentence report established that a coconspirator showed a
firearm to Hernandez and his wife while they were in the conspirator’s
apartment buying methamphetamine for resale. Accordingly, the district court
did not commit any error by concluding that another person involved in the
offense possessed a firearm and that Hernandez knew of that possession or
reasonably should have foreseen it. See United States v. Cisneros-Gutierrez, 517
F.3d 751, 765 (5th Cir. 2008).
Hernandez also contends that his sentence was unreasonable because it
should have been more like his wife’s sentence for her role in the same crime.
He argues that the district court should have weighed his wife’s extensive
cooperation in his favor. He fails to show any error, plain or otherwise, in the
sentence, and he fails to rebut the presumption that the sentence within the
properly calculated guidelines range was reasonable. See United States v. Ruiz,
621 F.3d 390, 398 (5th Cir. 2010); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).
The district court’s judgment is AFFIRMED.
2