UNITED STATES of America v. Adrian RODRIGUEZ-GUERRERO
No. 14-41289
United States Court of Appeals, Fifth Circuit
Oct. 30, 2015
the former cancellation of removal provision,
Section 212(c), the predecessor to
§ 1229b , required an alien seeking relief from removal to have “lawful unrelinquished domicile of seven consecutive years.” This requirement caused much confusion among the executive and judicial branches—the BIA and courts of appeals disagreed about the status necessary to satisfy this requirement. Ultimately, Congress designed the dual requirement of a five-year legal permanent residency and seven-year continuous residence in any status,§ 1229b(a)(1) (2), “to clear up prior confusion and to strike a balance between the conflicting interpretations . . . by counting a limited period of time spent in non-permanent status [nonimmigrant] while still requiring at least five years of permanent resident status [LPR status].”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1016 (9th Cir.2006) (internal citations omitted). See also Martinez Gutierrez, 132 S.Ct. at 2018-19 (recapping legislative history). The panel opinion asserts that the phrase “any status” illustrates an intent to provide cancellation of removal to those who were inadvertently admitted into the United States but were undocumented aliens. But the language was intended to clear the bar for legal nonimmigrants other than LPRs with respect to cancellation of removal. Using “status” as a term of art, as explained supra, captures this clearly identified goal.
CONCLUSION
“Status” is not a generic term covering undocumented aliens who were mistakenly waved through a port of entry. Rather, it is well understood in immigration law that a “status” is one of a legally defined set of categories that confers the right to be present in the United States. The phrase “any status” in
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.
Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Adrian Rodriguez-Guerrero pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana. He argues that the district court erred during sentencing by applying a two-level enhancement for possession of a firearm. We AFFIRM.
On September 5, 2012, McAllen, Texas police investigators were conducting surveillance of a ranch north of the city that was suspected of being a staging point for narcotics trafficking. The officers observed Rodriguez-Guerrero as he arrived and then left the ranch with another defendant, Jose de Jesus Gallo-Reyes. Officers followed them to a residence in McAllen. The two men later left the residence in a truck to return to the ranch. That truck was followed closely by a van driven by co-defendants Mariano Rodriguez and Juan Rodriguez. The vehicles appeared weighed down.
The officers stopped both vehicles. A canine alerted to the presence of narcotics in the van. A search of the van discovered boxes of limes with bundles of marijuana concealed among the limes. The suspects consented to a search of the residence in McAllen. There, officers found articles of clothing in two of the bedrooms, a loaded shotgun and 125 shotgun shells in the master bedroom, and two bundles of marijuana in the master bathroom shower. In a room connected to the garage, the officers found plastic cellophane, limes, packing tape, white and green fresh lime boxes, latex gloves, a large scale, and several bundles of marijuana. Wrapping material with marijuana residue was in the garage. All of the seized bundles of marijuana were wrapped with a combination of plastic cellophane and packing tape.
The owners of the residence were not charged in the case. There was no information as to who owned the clothing in the residence. In his written statement accepting responsibility, Rodriguez-Guerrero stated that he was hired to perform landscaping services at the McAllen residence. He later was asked to load the marijuana into a truck at the residence. Rodriguez-Guerrero acknowledged that the residence was a “stash house.”
Rodriguez-Guerrero pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana. His total offense level of 27 and criminal history category of III yielded a guidelines-range sentence of 87 to 108 months. Included in the calculation was a two-level enhancement for possession of a dangerous weapon, namely, the shotgun found in the master bedroom of the McAllen residence.
Rodriguez-Guerrero objected to the enhancement on the ground that there was no evidence that he controlled the shotgun or the house where the shotgun was found. He also denied knowing that the shotgun was present in the house. There was no evidence that he or his co-conspirators owned, leased, or resided at the house or had entered the master bedroom. There was also no evidence that he or any other conspirator had any connection to the shotgun or usually carried a weapon. The error was not harmless, he argues, because without the enhancement, his guideline range of imprisonment would have been 70 to 87 months.
The district court overruled the objection: “There was nothing else going on at that location other than the drug trafficking. And the weapon was there loaded and there were shells found in the same master bedroom.” The court said it was not finding Rodriguez-Guerrero “actually” or “constructive[ly]” possessed the shotgun; rather, “it was reasonably foreseeable to [the defendant] that there would be a weapon involved in relationship to this drug trafficking crime. And based on the location, then, what was in that place, there‘s nothing to indicate that it was there for anything other than involving the drug trafficking.” Further, the shotgun was “a tool of the trade and it‘s reasonably
The district court sentenced Rodriguez-Guerrero to 104 months of imprisonment and four years of supervised release. He timely appealed.
DISCUSSION
Rodriguez-Guerrero contends that the district court erred by applying the two-level enhancement for possession of the shotgun under
The government can prove that the defendant personally possessed the weapon “by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” Id. at 390. “Alternatively, when another individual involved in the commission of an offense possessed the weapon, the government must show that the defendant could have reasonably foreseen that possession.” Id. (quotation marks omitted). A defendant involved in a “jointly undertaken criminal activity” is responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”
In this case, the district court applied the enhancement on the basis that Rodriguez-Guerrero must have reasonably foreseen that another conspirator would knowingly possess a firearm. The district court did not connect the shotgun to any particular conspirator, nor does the record provide such evidence. Rodriguez-Guerrero‘s primary argument is that the failure to link the shotgun to a specific conspirator precludes the application of the sentencing enhancement. For this proposition, Rodriguez-Guerrero relies almost exclusively on our decision in Zapata-Lara.
In Zapata-Lara, the defendant brokered a drug deal that took place in the driveway of the seller‘s residence, which was owned by his mother. Id. at 389 & n. 1. Law enforcement officers later found a loaded handgun in the garage inside a small refrigerator that was 15 feet from where the drug deal took place. Id. The district court applied the
Unlike Zapata-Lara, the district court here made detailed findings explaining the necessary connections. We conclude that the facts identified by the court plausibly establish a temporal and spatial relationship between the weapon, the drug trafficking activity, and Rodriguez-Guerrero or a coconspirator. When a district court‘s factual findings are plausible in light of the record as a whole, they will be upheld. King, 773 F.3d at 52.
First, it is undisputed that the house where the shotgun was found was a stash house used to package and transport bundles of marijuana. It was a drug warehouse, not someone‘s residence in which drugs were also stored. Second, bundles of marijuana were found in the master bedroom bathroom, making it plausible to find that either Rodriguez-Guerrero or another conspirator accessed the master bedroom where the shotgun was found. Third, the amount of ammunition suggests that the weapon belonged to the defendant or his coconspirators in connection with the drug trade. Fourth, the shotgun was found on the same day that law enforcement observed Rodriguez-Guerrero and his coconspirators at the house.
Though nothing in the record links the shotgun to any particular conspirator, the evidence makes it plausible that a “weapon was present” and that one of the conspirators possessed it.
The sentencing enhancement reflects the “increased danger of violence when drug traffickers possess weapons.”
AFFIRMED.
UNITED STATES of America v. Christopher Michael HORNYAK, also known as Christopher Hornyak
No. 14-50299
United States Court of Appeals, Fifth Circuit
Oct. 30, 2015