United States v. Emerencio Rosa, Jr.
698 F. App'x 222
5th Cir.2017Background
- Rosa pleaded guilty to being a felon in possession of a firearm; district court imposed a within-Guidelines sentence of 42 months imprisonment and 3 years supervised release.
- PSR classified the offense with a base offense level 20 under U.S.S.G. § 2K2.1(a)(4)(B) based on a semiautomatic Glock 9mm and an alleged 50‑round drum magazine found in Rosa’s bedroom.
- The government needed to prove Rosa was a prohibited person (undisputed) and that the firearm was a semiautomatic capable of accepting a large‑capacity magazine (more than 15 rounds).
- Rosa did not dispute the PSR’s factual statements but argued the record lacked proof that the drum magazine actually fit the Glock or that anyone physically tested compatibility.
- A Collin County investigator testified from 25 years’ experience that the drum magazine was a Glock magazine holding over 50 rounds and was compatible with the pistol; the district court adopted the PSR and implicitly credited that testimony.
- Rosa also raised (but conceded was foreclosed) a constitutional challenge to 18 U.S.C. § 922(g) as beyond Commerce Clause power and lacking sufficient mens rea, preserved for further review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government proved the firearm could accept a large‑capacity magazine | Rosa: no direct evidence anyone physically tested that the drum magazine fit the Glock | Government: PSR plus investigator testimony established the drum was a Glock magazine >50 rounds and compatible | Court: affirmed—district court reasonably credited investigator testimony and adoption of PSR sufficed |
| Whether the drum magazine was in close proximity to the firearm | Rosa initially argued not in close proximity but abandoned this issue on appeal | Government: investigators found both items in Rosa's bedroom; proximity established | Court: Rosa abandoned the proximity challenge; no reversal |
| Whether appellate court should reweigh credibility of district court | Rosa: asks court to reject district court’s credibility finding absent physical testing | Government: district court’s implicit credibility determinations are entitled to deference | Court: declined to overturn credibility finding absent clear error; deference applied |
| Constitutionality of § 922(g) | Rosa: challenges Commerce Clause authority and mens rea requirements (preserved only) | Government: longstanding precedent upholding § 922(g) | Court: claim is foreclosed by precedent; preserved for further review |
Key Cases Cited
- United States v. Rodriguez, 630 F.3d 377 (5th Cir.) (interpreting application of § 2K2.1 enhancement for semiautomatic plus large‑capacity magazine)
- Stinson v. United States, 508 U.S. 36 (1993) (framework for treating Sentencing Guidelines commentary as authoritative)
- United States v. Scroggins, 599 F.3d 433 (5th Cir.) (proximity evidence standard for large‑capacity magazine enhancement)
- United States v. Angulo, 927 F.2d 202 (5th Cir.) (treating PSR facts as prima facie evidence when not disputed)
- United States v. Ford, 558 F.3d 371 (5th Cir.) (deference to district court credibility findings)