IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40597

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER DE JESUS BARRAGAN-MALFABON, also known as Javier Arturo

Barragan-Malfabon,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-73-1

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:

*

Javier De Jesus Barragan-Malfabon (Barragan) appeals the 87-month

sentence imposed following his guilty plea conviction to one count of possession

with intent to distribute 1000 kilograms or more of marijuana. He asserts that

the district court erred in imposing a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b)(12) (2011 version) for maintaining a premises for the

United States Court of Appeals

Fifth Circuit

F I L E D

July 30, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-40597

purpose of manufacturing or distributing a controlled substance. Because

Barragan objected to the imposition of this enhancement in the district court,

we review the district court’s application of the Sentencing Guidelines de novo

and its factual findings for clear error. See United States v. Villanueva, 408

F.3d 193, 203 & n.9 (5th Cir. 2005).

Before this court, Barragan asserts that the enhancement should not

apply because there was no direct evidence that he was manufacturing or

distributing marijuana from the residence in question and because there was

no evidence of temporal continuity in the use of the residence for drug-related

purposes. Under the plain language of the commentary to § 2D1.1, the

enhancement applies if the defendant stores controlled substances for the

purposes of ultimate distribution; Barragan pleaded guilty to possessing

marijuana with the intent to distribute it. See § 2D1.1, comment. (n.28). Even

if we assume that § 2D1.1(b)(12) includes a temporal element, Barragan

admitted that he had retrieved drugs on multiple occasions three months

before marijuana was found in his home, satisfying such a requirement.

Barragan also argues that the enhancement was improper because the

primary purpose of the home was to house his family rather than to engage in

marijuana transactions. Under the Guidelines, the Government need show

only that the manufacturing or distribution of controlled substances is a

primary or principal use of the facility, rather than the exclusive purpose. §

2D1.1, comment. (n.28). The presentence report indicated that Barragan

maintained exclusive control over a locked room in the house that was

apparently used only for the storage of marijuana. He possessed over 1000

kilograms of marijuana in the house and was paid for the storage; Barragan

also was holding $81,220 for an unknown person. Barragan had in his

possession a compressor and packaging materials; although he explained that

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No. 12-40597

he used the packaging to repair ripped bundles, he could not explain the

purpose of the compressor. A burned document that appeared to be a drug

ledger was found on Barragan’s barbecue pit, and Barragan’s brother

attributed the notebook to Barragan. The district court did not clearly err in

determining thatthe large amounts of marijuana and currency, combined with

evidence indicating that Barragan might be involved in packaging the drugs

and in either recording sales or destroying evidence of such sales, established

that a primary use of the home was the storage of controlled substances for

distribution purposes. See Villanueva, 408 F.3d at 203 & n.9; § 2D1.1,

comment. (n.28). Consequently, the judgment of the district court is

AFFIRMED.

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