* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41548

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RUBEN SALINAS, JR

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-11-2

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges. 

PER CURIAM:*

Ruben Salinas, Jr., appeals his sentence following his guilty plea

conviction for possession with intent to distribute more than 1000 kilograms of

marijuana. Salinas argues that the district court erred by denying him the

benefit of the “safety valve” provisions of U.S.S.G. § 5C1.2 based on a finding

that he possessed a firearm in connection with the offense. The firearm in

question was found in a bedroom of a house that Salinas was using to store more

than 2,500 kilograms of marijuana. Salinas argues that he did not “possess” the

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2008

Charles R. Fulbruge III

Clerk
No. 06-41548

2

firearm because it belonged to his father and it was found in his father’s

bedroom in his father’s house. 

The defendant has the burden of showing that he is entitled to a

safety-valve adjustment. United States v. McCrimmon, 443 F.3d 454, 457 (5th

Cir.), cert. denied, 547 U.S. 1120 (2006). The district court’s application of the

safety valve is reviewed for clear error. Id. Possession of a firearm may be

“actual” or “constructive” and may be proven by circumstantial evidence. United

States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999). This court applies “a

common sense, fact-specific approach” to a determination whether constructive

possession exists. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).

Although Salinas asserts that the firearm belonged to his father, whether

the firearm was accessible is relevant to possession inquiry, not its ownership.

See United States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994). The fact that

Salinas knew where the firearm could be found also suggests he had access to

it. See United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003). We also

note that Salinas’s ability to store such a large quantity of marijuana at the

house, allegedly without his father’s knowledge, suggests he had some degree of

“dominion or control over the premises.” United States v. Matias, 465 F.3d 169,

173 (5th Cir. 2006).

Salinas also argues that the firearm was not connected to his offense

because it was not stored near the marijuana and it was unloaded. This court

has held that, “despite any difference in semantics between U.S.S.G.

§ 2D1.1(b)(1) and § 5C1.2(2),the two provisions should be analyzed analogously.”

United States v. Vasquez, 161 F.3d 909, 913 (5th Cir. 1998). The Sentencing

Guidelines provide that the weapons enhancement “should be applied if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” § 2D1.1(b)(1) comment (n.3). A connection with the

offense may be shown with “evidence that the weapon was found in the same

location where drugs or drug paraphernalia are stored or where part of the
No. 06-41548

3

transaction occurred.” United States v. Jacquinot, 258 F.3d 423, 430 (5th Cir.

2001) (internal quotation marks and citation omitted).

Salinas asserts that the firearm was not sufficiently connected to his

offense because it was owned by his father to protect his home; however, even

if a weapon may have some other legitimate intended use, the relevant inquiry

is whether the weapon could have been used in connection with the drug offense.

See United States v. Menesses, 962 F.2d 420, 429 (5th Cir. 1992). Salinas’s

argument that the firearm was stored too far away from the marijuana is

unpersuasive. See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005);

United States v. Navarro, 169 F.3d 228, 230, 235 (5th Cir. 1999). Salinas’s

argument that the firearm was unloaded also is unpersuasive. See Jacquinot,

258 F.3d at 431; United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997).

Salinas also argues that the district court erred by finding that a coconspirator could have used the firearm and that a co-conspirator’s possession

of a firearm may be imputed to a defendant to deny relief under § 5C1.2. It is

unclear whether a finding of co-conspirator possession was the basis for the

district court’s ruling. This court has held that it is error to deny § 5C1.2 relief

based on a finding that a co-conspirator possessed a firearm. See United States

v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997). However, even if the district court

so erred, we affirm Salinas’s sentence because the record shows that he had

constructive possession ofthe firearm. See United States v. Grosz, 76 F.3d 1318,

1324 n. 6 (5th Cir. 1996); Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.

1992).

AFFIRMED.