Case: 14-41296 Document: 00513253390 Page: 1 Date Filed: 10/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41296 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, October 30, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
JOSE DE JESUS GALLO-REYES,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-17-2
Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose de Jesus Gallo-Reyes pled guilty to conspiracy to possess with intent
to distribute 100 kilograms or more of marijuana. Included in the calculation
of his offense level was a two-level enhancement for possession of a gun. Gallo-
Reyes argues that this two-level enhancement should not have been included
because there was insufficient evidence to support a finding that either he, or
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-41296
a co-conspirator, possessed the gun. There was sufficient evidence for such a
finding, and we therefore AFFIRM.
BACKGROUND
Most of the relevant facts in this case are recounted in the companion
case of United States v. Rodriguez-Guerrero, No. 14-41289 (5th Cir. Oct. 30,
2015). In brief, Gallo-Reyes and Adrian Rodriguez-Guerrero were two of
several co-conspirators involved in narcotics trafficking. The conspiracy
operated out of two locations in or just outside of McAllen, Texas: a ranch and
a residence. Police arrested both men, searched the residence, and discovered,
among other things, a loaded shotgun and 125 shotgun shells in the master
bedroom of the residence. Police also recovered from Gallo-Reyes a key to the
front gate of the ranch and a remote control to the garage door opener for the
residence.
Like Rodriguez-Guerrero, Gallo-Reyes was given a two-level sentence
enhancement for possession of a gun in a drug transaction. This enhancement
resulted in a total offense level of 25 and a sentencing guidelines range of 51
to 71 months. Because Gallo-Reyes had only one criminal history point, he
qualified for the “safety valve provision,” which allowed Gallo-Reyes to be
sentenced below the statutory minimum of 60 months. See 18 U.S.C. § 3553(f).
Gallo-Reyes was sentenced to 57 months in prison.
Gallo-Reyes objected to the two-level enhancement, arguing that the gun
had not been connected to him. He asserted that although he was seen at the
residence where the gun was located, he was not seen in the residence. He also
pointed out that there was no evidence indicating that he lived in the residence.
The district court rejected the argument, noting that “he actually had a key to
the location” and he “possessed a garage door opener to that particular
residence.” Gallo-Reyes timely appealed.
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No. 14-41296
DISCUSSION
Gallo-Reyes contends that the district court erred by applying the two-
level enhancement for possession of a gun under United States Sentencing
Guidelines Manual Section 2D1.1(b)(1) because there was no evidence to
support a finding that either he or a co-conspirator possessed the shotgun. For
the reasons discussed in the companion case United States v. Rodriguez-
Guerrero, No. 14-41289 (5th Cir. Oct. 30, 2015), we reject this argument. There
was no evidence offered to reveal which co-conspirator possessed the weapon.
As we held, though, what is important for application of the enhancement is
that the weapon be possessed in order to further the drug conspiracy,
regardless of whether it is known which co-conspirator possessed it. Id., slip
op. at 6.
AFFIRMED.
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