Case: 23-40222 Document: 00517036464 Page: 1 Date Filed: 01/18/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
January 18, 2024
No. 23-40222
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Vallejo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:21-CR-1022-2
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Victor Vallejo pleaded guilty to conspiracy to possess with intent to
distribute five kilograms or more of a mixture or substance containing a
detectable amount of cocaine. On appeal, Vallejo first argues that the district
court erred in holding him accountable for 0.90 kilograms of
_____________________
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
Case: 23-40222 Document: 00517036464 Page: 2 Date Filed: 01/18/2024
No. 23-40222
methamphetamine as relevant conduct in determining his base offense level.
Vallejo also argues that the district court erred in applying the two-level
enhancement under section 2D1.1(b)(1) of the U.S. Sentencing Guidelines
(“U.S.S.G.”) due to his coconspirator’s possession of a duty weapon during
the commission of the offense.
Because Vallejo preserved these arguments in the district court, we
“review the application of the Guidelines de novo and the district court’s
factual findings—along with the reasonable inferences drawn from those
facts—for clear error.” United States v. Gomez-Valle, 828 F.3d 324, 327 (5th
Cir. 2016) (internal quotation marks, emphasis, and citation omitted). The
district court’s assessment of relevant conduct for purposes of calculating a
sentence and application of the section 2D1.1(b)(1) enhancement are factual
findings this court reviews for clear error. See United States v. Barfield,
941 F.3d 757, 761 (5th Cir. 2019) (relevant conduct determination); United
States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (application of section
2D1.1(b)(1) enhancement).
First, the district court did not clearly err in determining that Vallejo
was responsible for the 0.90 kilograms of methamphetamine. See
U.S.S.G. § 1B1.3(a)(2); Barfield, 941 F.3d at 761. The guidelines provision
for determining Vallejo’s relevant conduct was section 1B1.3(a)(2). See
U.S.S.G. §§ 2D1.1, 3D1.2(d). Contrary to Vallejo’s contentions, the district
court did not need to make any findings as to whether the methamphetamine
trafficking constituted jointly undertaken criminal activity under
section 1B1.3(a)(1)(B), as Vallejo was directly involved in the conduct. See
U.S.S.G. §§ 1B1.3(a)(1)(A), 1B1.3, comment. (n.2); United States v. Carreon,
11 F.3d 1225, 1237 (5th Cir. 1994).
Vallejo’s challenge to the district court’s relevant conduct
determination under section 1B1.3(a)(2) is unavailing. Regarding whether
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No. 23-40222
the two offenses constituted a common scheme or plan, both offenses
involved common accomplices and similar modus operandi. See U.S.S.G.
§ 1B1.3, comment. (n.5(B)(i)); United States v. Rhine, 583 F.3d 878, 885 (5th
Cir. 2009). As for whether the methamphetamine trafficking was part of the
same course of conduct as the cocaine trafficking offense, the district court’s
relevant conduct determination was supported by the similarity of the
offenses and the temporal proximity of the offenses. U.S.S.G. § 1B1.3,
comment. (n.5(B)(ii)); see Rhine, 583 F.3d at 886-90. Thus, the district
court’s relevant determination was plausible in light of the record as a whole.
See United States v. Bazemore, 839 F.3d 379, 387 (5th Cir. 2016).
Next, it was plausible in light of the record as a whole for the district
court to find that Vallejo could have reasonably foreseen the coconspirator’s
possession of the firearm. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 765-66 (5th Cir. 2008); Bazemore, 839 F.3d at 387. The coconspirator
actively performed his duties as a police officer during the offense and used
that status to provide “cover” for the drug transportation, and Vallejo knew
that the coconspirator was an on-duty officer. See United States v. Partida,
385 F.3d 546, 563 (5th Cir. 2004); United States v. Marmolejo, 106 F.3d 1213,
1216 (5th Cir. 1997). Additionally, because firearms are “tools of the trade”
for drug traffickers, United States v. Aguilera-Zapata, 901 F.2d 1209, 1215
(5th Cir. 1990) (internal quotation marks and citation omitted), the district
court could infer foreseeability of the coconspirator’s possession of his duty
firearm during the offense, see id. The district court therefore did not clearly
err in applying the section 2D1.1(b)(1) enhancement. See King, 773 F.3d at
52.
AFFIRMED.
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