United States v. Rangel , 174 F. App'x 859 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-50603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO RANGEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(1:04-CR-250-2)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pedro Rangel appeals his 120-month sentence following his jury
conviction for possession with the intent to distribute, and
conspiracy to possess with the intent to distribute, more than five
kilograms of cocaine. Rangel asserts that, because the jury found
him not guilty of possession of, or conspiracy to possess, a firearm
in furtherance of a drug-trafficking crime, the district court
clearly erred in finding he possessed a firearm in connection with
*
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that this opinion should not be published and is not precedent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.
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the offense and enhancing his sentence as a result. We review for
clear error fact-finding with respect to enhancements;
interpretation of the Guidelines, de novo. E.g., United States v.
Creech, 408 F.3d 264, 270 n.2 (5th Cir.), cert. denied, 126 S. Ct.
777 (2005).
The jury’s finding Rangel not guilty of possession of, or
conspiracy to possess, a firearm in furtherance of drug
trafficking, did not bar the district court’s increasing his
offense level under Sentencing Guideline § 2D1.1(b)(1) (allowing
two-level increase for possession of dangerous weapon, including a
firearm). United States v. Buchanan, 70 F.3d 818, 828 (5th Cir.
1995), cert. denied, 517 U.S. 1114 (1996) (“While a conviction
requires proof beyond a reasonable doubt, a district court may
sentence a defendant within the Sentencing Guidelines on any
relevant evidence that has sufficient indicia of reliability to
support its probable accuracy.”) (internal citation and quotation
marks omitted).
Such possession is established if the Government proves by a
preponderance of the evidence “that a temporal and spatial relation
existed between the weapon, the drug trafficking activity, and the
defendant”. United States v. Hooten, 942 F.2d 878, 882 (5th Cir.
1991); see United States v. Vasquez, 161 F.3d 909, 912 (5th Cir.
1998) (“Applying this standard, the government must provide
evidence that the weapon was found in the same location where drugs
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or drug paraphernalia are stored or where part of the transaction
occurred.”) (internal citation and quotation marks omitted).
The evidence reflects that numerous firearms and ammunition
were found in the home of Rangel and his son (a coconspirator),
along with cocaine, money, and supplies. Firearms, ammunition, or
both were found in Rangel’s bedroom, his son’s bedroom, and common
areas of the home.
Pursuant to Sentencing Guidelines § 1B1.3(a)(1)(B), a
defendant’s offense level may be increased to reflect “all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity”. Accordingly, the
court did not clearly err in determining that the enhancement
applied based on guns being found in the same location where drugs
or drug paraphernalia were stored or by inferring that Rangel
should have foreseen his coconspirator’s possession of a dangerous
weapon. See Hooten, 942 F.2d at 882; United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).
Even if Rangel had been able to demonstrate clear error, the
district court was required to impose the statutory minimum of,
inter alia, 120 months of imprisonment. See 21 U.S.C. §
841(b)(1)(A). Accordingly, any error would have been harmless.
Williams v. United States, 503 U.S. 193, 203 (1992) (holding remand
is inappropriate where “the error did not affect the district
court’s selection of the sentence imposed”).
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Rangel also asserts his sentence is unconstitutionally
excessive due to his minor role in the conspiracy and because of
his age. Because Rangel failed to so object in district court, our
review is only for plain error. See United States v. Howard, 220
F.3d 645, 647 (5th Cir. 2000). Under that standard, Rangel bears
the burden of showing there is a “clear” or “obvious” error that
affected his substantial rights. See United States v. Olano, 507
U.S. 725, 732 (1993). If he is able to do so, we have discretion
to correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.(internal citations and quotation marks omitted) (alteration in
original).
In comparison to the life sentences imposed in Rummel v.
Estelle, 445 U.S. 263 (1980), on a non-violent criminal pursuant to
a recidivist statute, and in Harmelin v. Michigan, 501 U.S. 957(1991), on an offender with no criminal history for possessing 672
grams of cocaine, the 120-month sentence imposed here is not
grossly disproportionate to the offense of violating 21 U.S.C. §
841. See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.),
cert. denied, 519 U.S. 883 (1996). Therefore, Rangel has failed to
show an error, much less a clear or obvious one.
AFFIRMED
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