Case: 16-10683 Document: 00513844702 Page: 1 Date Filed: 01/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-10683 FILED
Summary Calendar January 23, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS ZUNIGA-VALENCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-255-6
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Jesus Zuniga-Valencia challenges the 240-month within-guidelines
sentence he received following his conviction for possession with the intent to
distribute methamphetamine. Zuniga-Valencia challenges the district court’s
application of the two-level enhancement for importation of methamphetamine
pursuant to U.S.S.G § 2D1.1(b)(5). He contends that the importation of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10683
methamphetamine must be reasonably foreseeable under the rules applicable
to relevant conduct in U.S.S.G § 1B1.3.
Though Zuniga-Valencia objected to this enhancement in the district
court, he did not object on the ground argued on appeal. Accordingly, review
of this issue is limited to plain error. See United States v. Juarez, 626 F.3d
246, 253-54 (5th Cir. 2010) (reviewing for plain error where the defendant
objected in the district court to an enhancement on different grounds than he
raised on appeal). We have held that the § 2D1.1(b)(5) enhancement applies if
the methamphetamine was imported regardless of the defendant’s knowledge
or involvement in the importation and even when “the person from whom the
defendant purchased the methamphetamine had not personally imported it.”
United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014), citing United States
v. Serfass, 684 F.3d 548, 553-54 (5th Cir. 2012). Zuniga-Valencia fails to show
that the district court plainly erred in imposing this enhancement. See Puckett
v. United States, 556 U.S. 129, 135 (2009).
He also challenges the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm, arguing that the rifle found in his
residence was in a different room from the drugs, that there was no evidence
that the rifle was loaded, and that he never fired the handgun that was
concealed under a chair in the kitchen. Because Zuniga-Valencia objected to
the § 2D1.1(b)(1) enhancement in the district court on the ground advanced on
appeal, we review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
A preponderance of the evidence established a temporal and spatial
relationship between the firearms and the drug activity. See United States v.
Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). A loaded pistol was found
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No. 16-10683
concealed in the room with methamphetamine and the laboratory. A large
amount of methamphetamine was found in the house, along with two firearms
and ammunition. Zuniga-Valencia presented no evidence on the issue. His
argument that the pistol was concealed fails to show that it is clearly
improbable that the weapon was connected with the offense. See United States
v. King, 773 F.3d 48, 53 (5th Cir. 2014). Thus, the district court did not err in
determining that the facts found were sufficient to support the enhancement.
See Zapata-Lara, 615 F.3d at 390.
Finally, Zuniga-Valencia challenges the substantive reasonableness of
his sentence. He asserts that his codefendant received a 170-month sentence
despite the fact that he was Zuniga-Valencia’s source of supply. He states that
the only reason for the codefendant’s lesser sentence was the fact that he
cooperated with the Government while Zuniga-Valencia did not debrief and
that Zuniga-Valencia’s sentence should be reduced to avoid unwarranted
disparities. The record reveals that Zuniga-Valencia is not similarly situated
to his codefendant and that the disparity among their sentences is warranted
by the Guidelines. See United States v. Duhon, 541 F.3d 391, 397 (5th Cir.
2008) (disparity due to a defendant providing substantial assistance is
warranted). Zuniga-Valencia fails to rebut the presumption of reasonableness
that is accorded his within-guidelines sentence. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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