IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11055

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE MANUEL ALBARRAN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-56-2

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Jose Manuel Albarran appeals his 87-month, within-guidelines sentence 

received following his guilty-plea conviction for conspiracy to possess with 

intent to distribute cocaine. He challenges the district court’s guidelines 

calculations, which would constitute a procedural error. See Gall v. United 

States, 552 U.S. 38, 51 (2007). A district court commits a procedural error, and 

thus “abuses its discretion[,] if it bases its decision on an error of law or a 

 

* 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

June 22, 2018

Lyle W. Cayce

Clerk

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2

clearly erroneous assessment of the evidence.” United States v. Castillo, 

430 F.3d 230, 238-39 (5th Cir. 2005) (quoting United States v. Smith, 

417 F.3d 483, 486-87 (5th Cir. 2005)). We review a challenge to the district 

court’s interpretation of the Guidelines de novo, while we review a claim of 

mistaken factual findings or a misapplication of the Guidelines to the factual 

findings for clear error. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 

2000).

Albarran first contends that the district court erred by including five 

kilograms of cocaine in his base offense level; he maintains that he and his 

coconspirators merely offered to make such a sale and that the buyers did not 

agree to the purchase. The presentence report (“PSR”) and the PSR addendum 

indicate that the parties agreed to a purchase of three kilograms of cocaine 

that were immediately available and to a purchase of five kilograms to be 

delivered later. A district court may adopt the facts in a PSR “without further 

inquiry if those facts have an adequate evidentiary basis with sufficient indicia 

of reliability and the defendant does not present rebuttal evidence or otherwise 

demonstrate that the information in the PSR is unreliable.” United States v. 

Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Trujillo, 

502 F.3d 353, 357 (5th Cir. 2012)). Albarran’s objection to the PSR’s drug 

quantity finding did not qualify as rebuttal evidence. United States v. Parker, 

133 F.3d 322, 329 (5th Cir. 1998). Albarran has not shown that the court’s 

factual finding was implausible in light of the record as a whole. See United 

States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).

Albarran then asserts that the district court erred by applying a twolevel enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based on his 

codefendant’s possession of a firearm at the time of their arrest. Under the 

Sentencing Guidelines, coconspirators are responsible for reasonably 

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foreseeable actions occurring within the scope of, and in furtherance of, jointly 

undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(B); see United States v. 

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990) (recognizing that a 

defendant may receive a § 2D1.1(b)(1) enhancement based on a codefendant’s 

possession of a firearm). Albarran cites no authority for his assertion that the 

underlying action—the possession of the firearm—must itself be jointly 

undertaken criminal activity for an enhancement to apply. Although he 

contends that he could not have foreseen the presence of a hidden weapon 

during a cocaine transaction, “[w]e have held that a district court may 

ordinarily infer that a defendant should have foreseen a codefendant’s 

possession of a dangerous weapon . . . if the government demonstrates that 

another participant knowingly possessed a weapon while he and the defendant 

committed the offense.” United States v. Garza, 118 F.3d 278, 285-86 (5th Cir. 

1997) (quoting United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)). To 

the extent that Albarran argues that his codefendant’s possession of the 

firearm was not in furtherance of jointly undertaken criminal activity because 

his codefendant could have possessed the firearm to prevent Albarran himself 

from cheating him, he has not shown that the district court’s findings were not 

plausible in light of the record as a whole. See Alaniz, 726 F.3d at 618; 

U.S.S.G. § 1B1.3(a)(1)(B).

Finally, Albarran argues that, if he prevails on his challenges to the 

guidelines calculations, his 87-month sentence would be substantively 

unreasonable because it would constitute an upward variance that was not 

justified by the record. As explained above, Albarran has not shown error in 

the guidelines calculations. See Lyckman, 235 F.3d at 237. As Albarran 

concedes, we employ a presumption of reasonableness for a sentence imposed 

within the proper advisory guidelines range. See United States v. Campos-

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Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Albarran has not established 

“that the sentence does not account for a factor that should receive significant 

weight, it gives significant weight to an irrelevant or improper factor, or it 

represents a clear error of judgment in balancing sentencing factors.” United 

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). The 

district court therefore did not abuse its discretion in imposing the sentence. 

See Gall, 552 U.S. at 51.

Albarran has shown no reversible error arising from the sentencing 

proceedings. Accordingly, the judgment of the district court is AFFIRMED.

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