United States v. Joseph Rojas , 699 F. App'x 432 ( 2017 )

Case: 16-11703 Document: 00514218369 Page: 1 Date Filed: 10/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11703 FILED
Summary Calendar October 31, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSEPH IGNACIO ROJAS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-140-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Joseph Ignacio Rojas appeals his sentence for conspiracy to possess with
intent to distribute a controlled substance. He challenges the enhancements
to his offense level for possession of a dangerous weapon under U.S.S.G.
§ 2D1.1(b)(1) and his aggravated role in the offense under U.S.S.G. § 3B1.1(c).
We review the district court’s interpretation of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Trujillo, 502 F.3d
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-11703
353, 356 (5th Cir. 2007). There is no clear error if a finding is “plausible in
light of the record as a whole.” Id.
First, Rojas contends that the district court clearly erred by finding that
he possessed a dangerous weapon. The court imposed the enhancement
because Rojas’s supplier saw him with a firearm, a loaded handgun was found
in his bedroom next to a safe containing $27,104 in drug proceeds, and drug
paraphernalia was found in other rooms of his house. Rojas questions the
credibility of his supplier but offers no facts to contradict the case agents’
determination that the account was reliable.
Rojas also emphasizes that no drugs were found in his bedroom, where
the gun was recovered. The Government may prove that a defendant
possessed a firearm under § 2D1.1(b)(1) “by showing that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and
the defendant.” United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010)
(internal quotation marks and citation omitted). To satisfy this standard, the
Government generally presents “evidence that the weapon was found in the
same location where drugs or drug paraphernalia are stored or where part of
the transaction occurred.” United States v. Hooten, 942 F.2d 878, 882 (5th Cir.
1991). The presence of drug paraphernalia and the proceeds of drug sales in
several rooms of Rojas’s house, along with the firearm’s location near a large
sum of drug proceeds, supports a reasonable inference the handgun was
accessible to Rojas to protect his drug trafficking activities. See id.; United
States v. McKeever, 906 F.2d 129, 134 (5th Cir. 1990).
To the extent Rojas also relies on his common law wife’s testimony that
she was the owner of the gun and it was in her possession, we give due regard
to the district court’s finding that the testimony was not credible. See Trujillo,
502 F.3d at 356. Accordingly, the district court’s finding that Rojas possessed
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a firearm was plausible in light of the record as a whole, and there was no clear
error. See id.
Next, Rojas asserts that the district court erred in finding that he was a
leader or organizer under § 3B1.1(c). Relevant factors include the defendant’s
“exercise of decision making authority, the nature of participation in the
commission of the offense, . . . and the degree of control and authority exercised
over others.” § 3B1.1 comment. (n.4). Rojas contends that the presentence
report (PSR) lacked specific facts showing that he exercised control over his co-
conspirator. Citing no evidence, Rojas alleges that the two were roughly equal
in culpability.
The district court was entitled to rely on the PSR. See United States
v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). It contained specific facts
showing that Rojas was the person who obtained the methamphetamine from
the supplier and communicated with buyers; that Rojas used his co-
conspirator’s home for storage and distribution of drugs after police searched
the home where Rojas had been selling drugs; and the co-conspirator worked
for Rojas, retrieving drugs for him so that Rojas could provide the drugs to
buyers. We find no clear error, as the court’s finding that Rojas was a leader
or organizer was plausible in light of the record as a whole. See § 3B1.1
comment. (n.4); Trujillo, 502 F.3d at 356.
AFFIRMED.
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