United States v. Mario Herrera
688 F. App'x 306
5th Cir.2017Background
- Herrera pleaded guilty to conspiracy to possess with intent to distribute methamphetamine and received a below-Guidelines sentence.
- At sentencing the district court applied a two-level U.S.S.G. § 2D1.1(b)(1) enhancement for possession of a firearm.
- The enhancement was based on firearms found at a co-conspirator’s residence.
- The government bore the burden to prove weapon possession by a preponderance; once proven, Herrera bore the burden to show it was clearly improbable the weapons were connected to the offense.
- The district court found Herrera reasonably could have foreseen his co-conspirator’s firearm possession based on Herrera’s substantial involvement: frequent transactions at that residence, deliveries with the co-conspirator, and temporal overlap between Herrera’s activity and discovery of the firearms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2D1.1(b)(1) enhancement applies when a co-conspirator possessed firearms | Herrera: could not reasonably foresee co-conspirator had firearms; no spatial/temporal nexus | Government/District Court: foreseeability inferred from jointly undertaken activity and co-conspirator’s possession | Affirmed: enhancement proper — Herrera reasonably foresaw the firearms |
| Burden of proof for weapon possession at sentencing | Herrera: challenges factual basis for enhancement | Government: must prove possession by preponderance; then defendant must show clear improbability | Court: district court’s factual findings supported by PSR; no clear error |
Key Cases Cited
- Zapata-Lara v. United States, 615 F.3d 388 (5th Cir.) (government must prove weapon possession by a preponderance; foreseeability required for co-conspirator possession)
- King v. United States, 773 F.3d 48 (5th Cir.) (standard of review for district court factual findings)
- Ollison v. United States, 555 F.3d 152 (5th Cir.) (reliability of presentence report and deference to PSR-supported findings)
- Rodriguez-Guerrero v. United States, 805 F.3d 192 (5th Cir.) (presence at discovery or joint arrest not required for foreseeability)
- Cisneros-Gutierrez v. United States, 517 F.3d 751 (5th Cir.) (foreseeability can be inferred from involvement in conspiracy)
- Dixon v. United States, 132 F.3d 192 (5th Cir.) (acts of co-conspirators in furtherance of conspiracy are reasonably foreseeable)