### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40955 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. J. JESUS PINEDA-PINEDA, Defendant - Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:11-CR-115-1

Before BARKSDALE, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * J. Jesus Pineda-Pineda appeals his jury-trial convictions for: conspiring to p o ssess, with intent to distribute, c o caine, i n violation of 21 U .S.C. § § 8 41(a)(1) and 846; being an illegal alien in p ossession of a firearm, in violation of 18 U.S.C. § 9 22(g)(5); and possessing a f irearm i n f

urtherance of a drug-trafficking crime, in violation o f 1 8 U.S.C. § 924(c)(1). H e contends: the Government did not provide sufficient evidence to support the jury’s verdict; the imposed 99-month prison sentence i s gr e a t er than necessary to m eet the sentencing goals of 18 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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U.S.C. § 3553(a)(2); and the district court erred by imposing a t erm of supervised release, despite his deportable-alien status. A preserved sufficiency-of-the-evidence challenge, a s in this instance, is reviewed de novo . U

nited States v. Grant , 683 F.3d 639, 642 ( 5th C ir . 2012). The evidence is viewed in the light most favorable to the G overnment t odetermine whether a rational trier of f act could have found the essential elements of t h e crimes beyond a reasonable doubt. Id. Ample direct and circu m s t a n tial evidence supports Pineda’s three convictions. For the conspiracy conviction, testimony revealed officers observed Pineda arrive at two controlled buys. After his arrival, a d e a l e r provided the cooperating witness w ith a l arge amount of drugs. Pineda was also observed using a key to enter a nd exit an apartment from whic h a n e v entual search yielded: large amounts of cocaine; approximately $2000 i n c ash; drug paraphernalia; and a loaded sem i a u t o m a t i c firearm. Some o f the bills in the apartment had serial numbers matching t h o s e provided to the cooperating witness to make the final controlled buy. On more than one occasion, o fficers o b s erved Pineda driving a gray Chevrolet Malibu. It, along with vehicles driven by Pineda’s co-conspirator and roommate, w as registered to “Liborio Torres”. After one c o ntrolled buy, officers observed Pineda p ick u p his co-conspirator, who appeared to be conducting counter-surveillance measures. The evidence reveals at least a tacit agreement to possess, with intent t o distribute, cocaine existed between Pineda and his codefendants, and tha t Pineda knew of, and voluntarily participated in, the conspiracy. E.g. , United States v. Infante , 404 F.3d 376, 385-86 (5th Cir. 2005). In considering the conspiracy evidence in the light most favorable to the verdict,

a reasonable juror could conclude Pineda w as guilty beyond a reasonable doubt. E.g. , United States v. Mitchell , 484 F.3d 762, 768-71 (5th Cir. 2007). For Pineda’s being convicted of possession of a firearm by a n illegal alien, he n either challenges that the firearm was in and affecting interstate commerce
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nor that he w as in the Un i t e d S t a t es illegally. Instead, he claims the Government failed to prove he knowingly possessed the firearm. See 18 U.S.C. § 922(g)(5) (unlawful for illegal alien to p ossess in or affecting commerce any firearm or ammunition). Testimony revealed Pineda exercised dom i n i on and control over the residence where the firearm w as discovered by u sing his key to enter and exit the premises. O n the morning officers executed the search warrant for the apartment, Pineda was asleep i n the bedroom, o nly s teps away from the closet where the firearm was foun d

. T h e w e a pon w as located in the

same closet where officials discovered cash f r o m the final controlled b uy. Officers testified: the weapon was i n plain sight; it was loaded; and there were

no impediments to anyone in the room grabbin g the weapon. Based on the eviden c e , a r ational juror could reasonably conclude Pineda knowingly and constructively possessed the firearm, sufficient to support his conviction pursuant to 18 U.S.C. § 922(g)(5). See, e.g. , United States v. Garcia-Flores , 246 F.3d 451, 454 (5th Cir. 2001). For the final of the three convictions, Pineda ’ s b e ing convicted of possessing a weapon i n furtherance of a drug-trafficking o ffense was supported, inter alia , by: the firearm’s being discovered l o aded and on a shelf next to a box of ammunition and a large amount of cocaine; and its being found i n the same closet where a large amount of cash was hidden. E.g. , United States v. NunezSa n c h ez , 478 F.3d 663, 669-70 (5th Cir. 2007); United States v. Molina r Apodaca , 889 F.2d 1417, 1424 (5th Cir. 1989). Although post- Booker , the Sentencing Guidelines are advisory only, and

a properly preserved o bjection to a n ultimate sentence is r eviewed for reasonableness under an abuse-of-discret i o n standard, the district court must still properly calculate the Guideline-sentencing range f or use in deciding on the sentence to impose. G all v. United State s , 5 5 2 U

. S

. 3 8 , 48-51 (2007). In that respect, its application of the Guidelines is reviewed de novo ; it s factual findings,

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only for clear error. E.g. , United States v . Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008); U

nited States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). Pineda did n ot challenge in district court the two sentencin g i s s u es he raises h ere. Accordingly, review of each issue is only f or plain e rror. E.g. , United S tates v. Peltier , 505 F .3d 389, 391-92 (5th Cir. 2007) (failure to object at sentencing to reasonableness of sentence triggers p lain- e rror review); United States v. Dominguez-Alvarado , 695 F.3d 324, 3 28 (5th Cir. 2012) (failure to raise

c l ai m th at s u p e rvi s e d r e l e a se “ordinarily” should not b e imposed when defen d a nt i s a d e p o rtable alien triggers plain-error review). For reversible plain erro r , Pineda must show a clear or obvious error that affected his substantial rights. See Puckett v . United S tates , 556 U.S. 129, 135 (2009). He fails to d o so i n either instance. Regarding the b elated challenge to the substantive reasonableness of his 9 9

- m o nth s e nt e nc e , th e di s tric t court considered the § 3 553(a) sentencing facto r s , as well as Pineda’s contentions in mitigation, and imposed a sentence within a properly-calculated advisory Guidelines s entencing range. E.g. , United States

v. Rodriguez , 523 F.3d 519, 526 (5th Cir. 2008). Pi n e d a d o es not show the requisite c l e ar or obvious error, such as by rebutting the p r esumption of reasonab leness that attaches to his within-Guidelines sentence. See United States v . Cooks, 589 F.3d 173, 186 (5th Cir. 2009); U.S.S.G. § 2 K2.4(b) (Guideline sentence f

or convictio n under 18 U.S.C. § 924(c) is minimum term of imprisonment required by statute). Along that line, his contending his s entence is not entitled to a presumption of reasonab l eness because the presumption is violative of United States v. Booker , 543 U.S. 220 ( 2005) , is foreclosed b y Rita v. United States , 551 U.S. 338 (2007). Pineda asserts his term o f s u p e rvi s e d r e l e a s e i s procedurally unreasonable because the court n either informed him o f its intent to depart from the advisory G uidelines, nor adequately explained its reasons for imposing supervi s e d release, desp i t e h i s status as a deportable alien. See U.S.S.G. § 5D1.1(c)
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(supervised release should n ot ordinarily be imposed when, inter alia , defendant is a deportable alien likely to be deported after imprisonment). Once agai n , P ineda fails to s h ow the r equisite clear or obvious error. Because the three-year term of supervised release imposed f or the possession convictions was within the statutory and advisory Guidelines s entencing ranges for each offense, a departure analysis is not triggered. Se e Dominguez-Alvarado , 695 F.3d at 329; 18 U.S.C. § 3583(b)(1) & (2) (identifying a uth o r i z e d t erms of supervised release); U.S.S.G. § 5D1.1(b) (permissible b ut not mandatory to order term of supervised release following imprisonment in cases o ther than those in subsection (a)); U.S.S.G. § 5D1.2(a)(1) (identifying for Class A o r B f elony length of supervised-release term when ordered). Further, Guideline § 5D1.1(c) is not applicable to the t erm o f s upervised release i m posed for Pineda’s conspiracy conviction because the court was required by statute to impose a three-year term of supervised release. 21 U.S.C. § 841(b)(1)(C); § 5D1.1(c). Moreover, the court cited adequate reasons for its imposing supervised release. E.g. , Dominguez-Alvarado , 695 F.3d at 330. AFFIRMED.

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