United States v. Marquez ( 2021 )

Case: 20-50915 Document: 00515946886 Page: 1 Date Filed: 07/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 21, 2021
No. 20-50915
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeremiah Hector Marquez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-257-2
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Jeremiah Hector Marquez appeals the sentence imposed for his guilty
plea conviction for conspiracy to possess with intent to distribute at least 500
grams of a substance containing methamphetamine. Marquez challenges the
assessment of a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12)
*
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opinion should not be published and is not precedent except under the limited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: 20-50915 Document: 00515946886 Page: 2 Date Filed: 07/21/2021
No. 20-50915
for maintaining a premises for the purpose of distributing or manufacturing
drugs. Because Marquez did not object in the district court to the assessment
of the enhancement, we apply plain-error review to the district court’s factual
finding that the enhancement applied. See United States v. Benitez, 809 F.3d
243, 249 (5th Cir. 2015); see also Davis v. United States, 140 S. Ct. 1060, 1061-
62 (2020).
Marquez argues that the information in the presentence report (PSR),
which the district court adopted to find that the enhancement applied, lacked
a sufficient evidentiary basis. He asserts that the PSR offered only conclusory
statements and unsupported conjecture and did not contain specific
information establishing that he maintained a premises for which the
distribution of drugs was a primary purpose. See § 2D1.1(b)(12); § 2D1.1,
comment. (n.17).
A district court may adopt the factual findings of the PSR without
further inquiry if the facts have an evidentiary basis with sufficient indicia of
reliability, and the defendant fails to present rebuttal evidence or to establish
otherwise that the PSR is materially unreliable. United States v. Hearns, 845
F.3d 641, 650 (5th Cir. 2017); accord United States v. Fuentes, 775 F.3d 213,
220 (5th Cir. 2014). For purposes of plain-error review, application of the
§ 2D1.1(b)(12) enhancement is not clear or obvious error if it is “subject to
reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009); see
United States v. Randall, 924 F.3d 790, 796 (5th Cir. 2019).
Here, any error in applying the § 2D1.1(b)(12) enhancement is at least
subject to reasonable dispute based on the uncontested and unrebutted facts
in the PSR, which were derived from investigative reports of law enforcement
and thus could be properly found to be reliable. See Fuentes, 775 F.3d at 220;
United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991). Therefore, Marquez
has failed to meet his burden under the plain-error standard of showing that
2
Case: 20-50915 Document: 00515946886 Page: 3 Date Filed: 07/21/2021
No. 20-50915
the assessment of the § 2D1.1(b)(12) enhancement was clear or obvious error.
See Randall, 924 F.3d at 796.
AFFIRMED.
3