IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 possess, with intent to distribute, cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846; being an illegal alien in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(5); and possessing a firearm in furtherance of a drug-trafficking crime,

in violation of 18 U.S.C. § 924(c)(1). He contends: the Government did not

provide sufficient evidence to support the jury’s verdict; the imposed 99-month

prison sentence is greater than necessary to meet the sentencing goals of 18

United States Court of Appeals

Fifth Circuit

F I L E D

July 8, 2013

Lyle W. Cayce

Clerk

* 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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U.S.C. § 3553(a)(2); and the district court erred by imposing a term of supervised

release, despite his deportable-alien status.

A preserved sufficiency-of-the-evidence challenge, as in this instance, is

reviewed de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). The

evidence is viewed in the light most favorable to the Government to determine

whether a rational trier of fact could have found the essential elements of the

crimes beyond a reasonable doubt. Id.

Ample direct and circumstantial evidence supports Pineda’s three

convictions. For the conspiracy conviction, testimony revealed officers observed

Pineda arrive at two controlled buys. After his arrival, a dealer provided the

cooperating witness with a large amount of drugs. Pineda was also observed

using a key to enter and exit an apartment from which an eventual search

yielded: large amounts of cocaine; approximately $2000 in cash; drug

paraphernalia; and a loaded semiautomatic firearm. Some of the bills in the

apartment had serial numbers matching those provided to the cooperating

witness to make the final controlled buy. 

On more than one occasion, officers observed Pineda driving a gray

Chevrolet Malibu. It, along with vehicles driven by Pineda’s co-conspirator and

roommate, was registered to “Liborio Torres”. After one controlled buy, officers

observed Pineda pick up his co-conspirator, who appeared to be conducting

counter-surveillance measures. The evidence reveals at least a tacit agreement

to possess, with intent to distribute, cocaine existed between Pineda and his codefendants, and that 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 was 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 an illegal alien,

he neither challenges that the firearm was in and affecting interstate commerce

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nor that he was in the United States 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 possess in or affecting commerce any

firearm or ammunition). Testimony revealed Pineda exercised dominion and

control over the residence where the firearm was discovered by using his key to

enter and exit the premises. On the morning officers executed the search

warrant for the apartment, Pineda was asleep in the bedroom, only steps away

from the closet where the firearm was found. The weapon was located in the

same closet where officials discovered cash from the final controlled buy. 

Officers testified: the weapon was in plain sight; it was loaded; and there were

no impediments to anyone in the room grabbing the weapon. Based on the

evidence, a rational 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 being convicted of

possessing a weapon in furtherance of a drug-trafficking offense was supported,

inter alia, by: the firearm’s being discovered loaded and on a shelf next to a box

of ammunition and a large amount of cocaine; and its being found in the same

closet where a large amount of cash was hidden. E.g., United States v. NunezSanchez, 478 F.3d 663, 669-70 (5th Cir. 2007); United States v. MolinarApodaca, 889 F.2d 1417, 1424 (5th Cir. 1989). 

Although post-Booker, the Sentencing Guidelines are advisory only, and

a properly preserved objection to an ultimate sentence is reviewed for

reasonableness under an abuse-of-discretion standard, the district court must

still properly calculate the Guideline-sentencing range for use in deciding on the

sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that

respect, its application of the Guidelines is reviewed de novo; its 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); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

Pineda did not challenge in district court the two sentencing issues he

raises here. Accordingly, review of each issue is only for plain error. E.g.,

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (failure to object at

sentencing to reasonableness of sentence triggers plain-error review); United

States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012) (failure to raise

claim that supervised release “ordinarily” should not be imposed when defendant

is a deportable alien triggers plain-error review). For reversible plain error,

Pineda must show a clear or obvious error that affected his substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to do so in either

instance.

Regarding the belated challenge to the substantive reasonableness of his

99-month sentence,the district court considered the § 3553(a) sentencing factors,

as well as Pineda’s contentions in mitigation, and imposed a sentence within a

properly-calculated advisory Guidelines sentencing range. E.g., United States

v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Pineda does not show the

requisite clear or obvious error, such as by rebutting the presumption of

reasonableness that attaches to his within-Guidelines sentence. See United

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); U.S.S.G. § 2K2.4(b) (Guideline

sentence for conviction under 18 U.S.C. § 924(c) is minimum term of

imprisonment required by statute). Along that line, his contending his sentence

is not entitled to a presumption of reasonableness because the presumption is

violative of United States v. Booker, 543 U.S. 220 (2005), is foreclosed by Rita v.

United States, 551 U.S. 338 (2007). 

Pineda asserts his term of supervised release is procedurally unreasonable

because the court neither informed him of its intent to depart from the advisory

Guidelines, nor adequately explained its reasons for imposing supervised

release, despite his status as a deportable alien. See U.S.S.G. § 5D1.1(c)

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(supervised release should not ordinarily be imposed when, inter alia, defendant

is a deportable alien likely to be deported after imprisonment).

Once again, Pineda fails to show the requisite clear or obvious error.

Because the three-year term of supervised release imposed for the possession

convictions was within the statutory and advisory Guidelines sentencing ranges

for each offense, a departure analysis is not triggered. See Dominguez-Alvarado,

695 F.3d at 329; 18 U.S.C. § 3583(b)(1) & (2) (identifying authorized terms of

supervised release); U.S.S.G. § 5D1.1(b) (permissible but not mandatory to order

term of supervised release following imprisonment in cases other than those in

subsection (a)); U.S.S.G. § 5D1.2(a)(1) (identifying for Class A or B felony length

of supervised-release term when ordered). Further, Guideline § 5D1.1(c) is not

applicable to the term of supervised release imposed 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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