IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 9, 2009
No. 08-40196
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FERNANDO ACUNA-PEREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-177-2
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Fernando Acuna-Perez (Acuna) appeals his 80 month sentence following
his guilty plea conviction for conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine.
Acuna first argues that the district court erred by enhancing his base
offense level by two levels for possession of a dangerous weapon. See U.S.S.G.
§ 2D1.1(b)(1). Acuna asserts he was unaware of the presence of any firearms in
*
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should not be published and is not precedent except under the limited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.
No. 08-40196
the house where the cocaine was found. A defendant’s guidelines offense level
may be enhanced under § 2D1.1(b)(1) if the possession of a firearm by a
coconspirator was reasonably foreseeable. See United States v. Hernandez, 457
F.3d 416, 423 (5th Cir. 2006). Because there is evidence that Acuna’s
codefendant possessed a firearm while he and Acuna were engaged in
rewrapping a large quantity of cocaine, the district court did not clearly err by
inferring that his codefendant’s possession of a dangerous weapon was
reasonably foreseeable. See United States v. Thomas, 120 F.3d 564, 574 (5th Cir.
1997); United States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996).
Acuna also argues that the district court erred by denying his request for
a downward adjustment of his offense level based on his minor or minimal role
in the offense. See U.S.S.G. § 3B1.2. One of Acuna’s codefendants stated that,
when he arrived at the stash house, Acuna stated that he had been sent by other
conspirators to help with the impending cocaine delivery. In addition, Acuna
acknowledged that he agreed to help rewrap a large quantity of cocaine, which
was a step leading to its further distribution. Because the district court’s finding
that Acuna was not a minor or minimal participant is plausible in light of the
record read as a whole, we conclude that the district court did not clearly err in
finding that Acuna was not entitled to this reduction. See United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
AFFIRMED.
2