United States Court of Appeals

for the Fifth Circuit

No. 19-20701

United States of America, 

Plaintiff—Appellee,

versus

Rafael Castro Fonseca, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CR-492-3

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam:*

Rafael Castro Fonseca pled guilty, without a plea agreement, to 

conspiracy to possess with intent to distribute a controlled substance, in 

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), and to aiding and 

abetting the substantive offense of possession with intent to distribute a 

controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 3, 2020

Lyle W. Cayce

Clerk

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U.S.C. § 2. On appeal, Fonseca contests his within-guidelines sentence, 

asserting the district court erred in applying a two-level “stash house” 

enhancement pursuant to U.S.S.G. § 2D1.1(b)(12).

1

 Fonseca also asserts that 

his written judgment contains a clerical error, requiring remand for 

correction. While we agree that a clerical error in the judgment mandates a 

limited remand for correction, we otherwise affirm Fonseca’s sentence. 

I.

According to the presentence report (PSR) adopted by the district 

court, Fonseca met his co-conspirator, Alvaro Robledo Tovar, in Mexico, 

where they began smuggling cocaine. The two then continued this operation

in the United States, where “[o]ver time, Fonseca agreed to store large 

amounts of cocaine at his apartment for Tovar in exchange for payments.” 

Tovar also paid Fonseca to deliver packages. 

On March 22, 2018, following a tip from a cooperating source, the 

Pasadena, Texas Police Department Narcotics Division conducted

surveillance of Tovar’s residence. While watching the residence, officers 

saw Fonseca and Tovar exit with a cooler and load it into a Ford Taurus. 

Fonseca then left the residence driving the Taurus. Officers stopped the

Taurus, detained Fonseca, and searched the vehicle. The search revealed a

cooler containing $318,659 and 9.94 kilograms of cocaine.

2

 Fonseca also 

1 This enhancement is “based on 21 U.S.C. § 856, the so called ‘stash house’ 

statute. Asthe colloquial name implies, § 856 and [§] 2D1.1(b)(12) do not target the homes 

of casual users of illicit substances, but rather facilities where a primary or principal purpose 

is the manufacture and distribution of [narcotics].” United States v. Rodriguez, 707 F. 

App’x 224, 226–27 (5th Cir. 2017) (unpublished). 

2

 The PSR indicates that on March 22, Tovar paid Fonseca $300 to pick up the 

cooler and hold it until further notice. 

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consented to a search of his apartment (Fonseca’s intended destination), 

which revealed a pistol and a 9mm magazine. 

Based on these facts, the probation officer’s PSR included the 

following offense-level computation:

Calculation Level U.S.S.G. § Description

Base offense level 32 2D1.1(a)(5), 

2D1.1(c)(4)

A violation of 21 USC 

841(a)(1) and (b)(1)(A) 

involving at least 15 

kilograms but less than 

50 kilograms of cocaine

Specific offense 

characteristic +2 2D1.1(b)(1)

Possession of a

dangerous weapon 

(including a firearm) 

Specific offense 

characteristic +2 2D1.1(b)(12)

Maintaining a premises

for the purpose of 

distributing a 

controlled substance

Adjustment to offense 

level -3 3E1.1(a)&(b) Acceptance of responsibility

Total offense level 33

With no prior criminal history, Fonseca had a criminal history category of I. 

Together, Fonseca’s total offense level of 33 and criminal history category of 

I placed Fonseca’s guidelines imprisonment range at 135 to 168 months. 

Fonseca filed written objections to the PSR, primarily challenging the 

§ 2D1.1(b)(12) enhancement, which applies to persons who “maintain[] a 

premises for the purpose of manufacturing or distributing a controlled 

substance.” U.S.S.G. § 2D1.1(b)(12). According to Fonseca, he did not 

maintain a premises to distribute narcotics, the search of his apartment did 

not reveal any narcotics, and the PSR did not clarify how many times he 

stored narcotics at his apartment. The probation office filed an addendum to 

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the PSR noting Fonseca’s objections but maintaining that the enhancement

applied. According to the probation office, Fonseca, “[b]y his own 

admission, . . . allowed narcotics to be delivered to and stored in his 

apartment.” 

At sentencing, the district court addressed Fonseca’s objection to the 

§ 2D1.1(b)(12) enhancement: “I don’t think there’s any dispute about Mr. 

Fonseca allowing the narcotics to be delivered and stored in his apartment. 

His argument is that that was not the primary purpose for which he 

maintained the apartment.” Fonseca’s counsel agreed. After hearing from 

both parties, the court overruled Fonseca’s objection:

I think that the case law supports the enhancement in this case, 

and certainly, the facts of Mr. Fonseca allowing the narcotics 

to be delivered to and stored in his apartment—these were not 

trivial quantities. This was not for a very short period. These 

were substantial amounts, and they were not kept there for 

hours or even just a few days. It was longer than that.

Fonseca asked for a below-guidelines sentence of 120 months, and the 

government requested a 135-month sentence (the low end of the guidelines 

range). The court agreed with the government and sentenced Fonseca to 135 

months of imprisonment followed by five years of supervised release on each 

count, to run concurrently. The court imposed a $200 special assessment

and ordered that “$100 is due immediately. The remaining amount is due 

over the period of imprisonment. Up to [fifty] percent of what is earned in 

[prison] will be sent . . . to help satisfy the remaining mandatory assessment.” 

However, the written judgment filed after sentencing provided that a

“[l]ump sum payment of $200 [would be] due immediately . . . .” Fonseca 

now appeals. 

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II.

On appeal, Fonseca first challenges the district court’s application of 

the two-level “stash house” enhancement under § 2D1.1(b)(12). “A district 

court’s application of § 2D1.1(b)(12) is a factual finding reviewed for clear 

error.” United States v. Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017) 

(quoting United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015)). We deem 

a district court’s factual finding clearly erroneous only when “based on the 

entire evidence, [we are] left with the definite and firm conviction that a 

mistake has been committed.” Haines, 803 F.3d at 744. (quoting United 

States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014) (alteration in original)).

Fonseca contends the district court clearly erred in applying the 

§ 2D1.1(b)(12) enhancement because the facts in the PSR do not support the 

enhancement, “especially in light of the [g]uidelines commentary.” 

Fonseca emphasizes that narcotics distribution must be a primary or principal

use of the residence. According to Fonseca, although the PSR provides that 

he “agreed to store large amounts of cocaine at his apartment for Tovar in 

exchange for payments,” the PSR does not provide any information about 

frequency, which would indicate the primary or principal use of his residence. 

Fonseca also notes that—unlike other actions where this Court has upheld a 

§ 2D1.1(b)(12) enhancement—the search of his apartment did not uncover 

any narcotics or distribution-related items, except for a pistol and magazine. 

While we acknowledge that the evidence here presents a close case, we 

cannot say “with [a] definite and firm conviction that a mistake has been 

committed.” Haines, 803 F.3d at 744. 

The guidelines comment referenced by Fonseca provides:

Subsection (b)(12) applies to a defendant who knowingly 

maintains a premises (i.e., a building, room, or enclosure) for 

the purpose of manufacturing or distributing a controlled 

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substance, including storage of a controlled substance for the 

purpose of distribution.

. . .

Manufacturing or distributing a controlled substance need not 

be the sole purpose for which the premises was maintained, but 

must be one of the defendant’s primary or principal uses for 

the premises, rather than one of the defendant’s incidental or 

collateral uses for the premises. In making this determination, 

the court should consider how frequently the premises was 

used by the defendant for manufacturing or distributing a 

controlled substance and how frequently the premises was 

used by the defendant for lawful purposes.

U.S.S.G. § 2D1.1, cmt. n.17.

As this court has previously stated, “the evidentiary bar for ‘primary 

or principal use’ has not been set high.” Rodriguez, 707 F. App’x at 227 

(referencing United States v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015); 

United States v. Carrillo, 689 F. App’x 334, 336 (5th Cir. 2017) 

(unpublished)). In United States v. Lopez, 750 F. App’x 349, 352–53 (5th Cir. 

2018) (unpublished), this court upheld a § 2D1.1(b)(12) enhancement where

the PSR only reflected that the narcotics intended for distribution were 

stored in the defendant’s home on a single occasion. There, the court 

determined “that the district court could plausibly conclude that drug 

distribution was a primary purpose of [the defendant’s] residence based on 

the paraphernalia, the digital scale, and the amount of drugs found in various 

parts of the house and on the property.” Id. at 352. 

Here, officers found a pistol and a 9mm magazine at Fonseca’s 

apartment, and Fonseca told officers he carried the pistol when delivering 

packages for Tovar. Further, while the PSR does not identify the precise 

number of times that Fonseca stored narcotics at his residence, the PSR 

makes it clear—and Fonseca admits—that this was not the first time he had 

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stored drugs for Tovar. According to the PSR, “Fonseca worked for Tovar 

and was responsible for picking up packages and storing multiple kilograms 

of cocaine at [his (Fonseca’s)] residence in Pasadena, Texas.” On the date 

of the subject incident, Tovar paid Fonseca $300 to pick up and hold a cooler 

full of cocaine and a large sum of cash until further notice. We give minimal

weight to the fact that the search of Fonseca’s apartment did not reveal

narcotics; the officers stopped Fonseca in transit to his residence, where he 

intended to store the 9.94 kilograms of cocaine and $318,659 that he was 

carrying in his vehicle. For these reasons, the district court’s determination 

“is plausible in light of the record read as a whole.” Guzman-Reyes, 853 F.3d

at 262 (quoting United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 

2005)). We thus affirm the district court’s application of § 2D1.1(b)(12).

3

 

III.

Fonseca next raises as error the conflict between the oral 

pronouncement and the written judgment regarding the $200 specialassessment payment. During sentencing, the district court ordered $100 due 

immediately, with the remaining amount due over the period of 

imprisonment. By contrast, the written judgment requires an immediate 

$200 lump-sum payment. Fonseca asks that we remand for the purpose of 

correcting the written judgment to reflect the oral pronouncement. The 

government agrees. 

3 Fonseca also asserts that, based on the district judge’s comments during the 

sentencing hearing, the district court may have confused him with his co-defendant, Tovar, 

who, defendant argues, used his residence as a stash house. Again, viewing the entire 

record as we are required to do, we cannot say that “we are left with the definite and firm 

conviction that a mistake has been committed.” Haines, 803 F.3d at 744. 

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“[W]hen there is a conflict between a written sentence and an oral 

pronouncement, the oral pronouncement controls.” United States v. 

Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam); see also United 

States v. Diggles, 957 F.3d 551, 557 (5th Cir. 2020) (en banc), petition for cert. 

filed (U.S. Sept. 24, 2020) (No. 20-5836). Here, the written judgment 

conflicts with the payment schedule set forth during the oral pronouncement. 

Accordingly, we agree with the parties that this case must be remanded to

correct the written judgment so that it mirrors the oral pronouncement. See 

United States v. Pacheco-Alvarado, 782 F.3d 213, 223 (5th Cir. 2015) (ordering 

a limited remand to correct the written judgment to reflect the oral 

pronouncement’s payment schedule). 

IV.

The judgment of the district court is REMANDED for the limited 

purpose of correcting the clerical error regarding payment of the special 

assessment; otherwise, the district court’s judgment is AFFIRMED. 

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