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 misapplied 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 11, 2019

Lyle W. Cayce

Clerk

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No. 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 the 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 Government has the initial burden to show by a preponderance of 

the evidence that Roman’s coconspirator possessed the firearms to be used in 

connection with drug trafficking and that Roman could have foreseen that 

possession and use. See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th 

Cir. 2010). The Government made that showing by providing 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 solely on a presumption that 

the use of firearms in drug trafficking is always foreseeable.

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Roman was required to provide rebuttal evidence showing 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 whether 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 drugs and currency is not 

controlling 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, the significant amounts of drugs 

and money involved in the conspiracy increased 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 provide 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 factual 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 judgment of the district 

court is AFFIRMED.

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