### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 41172 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
JOSE ROMAN , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:16

- CR

- 876

- 8

Before REAVLEY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: *
Jose Roman (Roman) appeals his 120

- month sentence of imprisonment imposed following his guilty plea to conspiracy to possess with intent to distribute five kilograms or more of cocaine. Roman argues that the district court clearly erred by enhancing his offense level pursuant to U.S.S.G. § 2D1.1 (b)(1) based on his coconspirator’s alleged possession of firearms in furtherance of the conspiracy . He contends that the district court misapp lied

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 11, 2019

Lyle W. Cayce Clerk Case: 17-41172 Document: 00514791184 Page: 1 Date Filed: 01/11/2019No. 17

- 41172

2 the Guidelines by making a general presumption that firearms are “tools of the trade” and that it is always foreseeable that they will be used during criminal drug activity. Additionally , he contends that he rebutted the evidence presented by the Government that overcame the inference of foreseeability and, thus, he showed that it was clearly improbable that t he firearms found were connected to the drug offense. The district court’s application of the Guidelines is reviewed de novo, and its fact

- finding in support of a sentencing enhancement is reviewed for clear

error . United States v. Rodriguez , 630 F.3d 377 , 380 (5th Cir. 2011). The findings will be affirmed if plausible given the record on the whole. Id. The enhancement applies if a defendant possessed a “dangerous weapon (including a firearm)” during drug offense conduct. § 2D1.1(b)(1)

. The Governmen t ha s the initial burden to show by a preponderance of the evidence t hat Roman’s coconspirator possessed the firearms to be used in connection with drug trafficking and that Roman could have foreseen that possession and use. S ee United States v. Zapata

- La ra , 615 F. 3d 388, 390 (5th Cir. 2010) . The Government made that showing by p rovid ing evidence that coconspirator Rodrigo Roman (Rodrigo) possessed weapons and ammunition in his residence where agents discovered $48,000 in currency along with 4.72 kilograms of cocaine found concealed in a vehicle parked on Rodrigo’s property. Based on the Government’s investigation, evidence was provided that Roman and Rodrigo were part of a large drug trafficking conspiracy in which they participated by storing and delivering large amounts of cocaine and currency

. The district court ’s comments at sentencing showed that , in making its determination, it relied on that evidence and not solel y on a presumption that the use of firearms in drug trafficking is always foreseeable

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3 Roman was required to provide rebuttal evidence show ing that “it was clearly improbable” that the weapons discovered in his coconspirator’s house were connected with the drug trafficking activity. See United States v. Ruiz , 621 F.3d 390, 396 (5th Cir. 2010) (internal quotation marks and citation omitted)

. His alleged lack of knowledge of the presence of the firearms was not a factor because the relevant inquiry is wh ether such possession was reasonably foreseeable to him. See United States v. Aguilar

- Zapata , 901 F.2d 1209, 1215 (5th Cir. 1990). Additionally, the fact that the firearms were not located in the same specific location as the drug s and currency is not

co ntrolling because the dispositive issue is whether the firearms were accessible to protect the drugs and currency. See United States v. Rodriguez , 62 F.3d 723, 725 (5th Cir. 1995). Further, th e significant amount s of drugs and money involved in the conspiracy increase d the likelihood, and therefore the foreseeability, that those involved in the conspiracy will have dangerous

weapons. See United States v. Cisneros

- Gutierrez , 517 F.3d 751, 766 (5th Cir. 2008) . Roman failed to pr ovide any rebuttal evidence showing that Rodrigo’s possession of the firearms was not related to facilitating the drug

- trafficking activities and that such use was not reasonably foreseeable to him. See Ruiz , 621 F.3d at 396

. The district court’s factua l findings were plausible based on the entire record, and, therefore, the findings were not clearly erroneous. See Rodriguez, 630 F.3d at 380. The district court did not err in making the two

- level enhancement pursuant to § 2D1.1(b)(1) ; therefore, the ju dgment of the district
court is AFFIRMED. Case: 17-41172 Document: 00514791184 Page: 3 Date Filed: 01/11/2019