IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11344

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

EMERENCIO ROSA, JR., 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:15-CR-499-1 

Before DAVIS, CLEMENT, and PRADO, Circuit Judges

PER CURIAM:*

Emerencio Rosa., Jr., appeals the within-guidelines sentence of 42 

months of imprisonment and a 3-year term of supervised release imposed on 

his guilty plea conviction for possession of a firearm after a felony conviction.1

The sentence largely results from a base offense level of 20 fixed by the 

presentence report (PSR) under U.S.S.G. §§ 2K2.1(a)(4)(B)(i)(I) and (ii)(I) on 

the basis that Rosa was a convicted felon in possession of a semiautomatic 

 

* 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.

1 See 18 U.S.C. §§ 922(g)(1), 924(a)(2). 

United States Court of Appeals

Fif h Circuit

FILED

October 5, 2017

Lyle W. Cayce

Clerk

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No. 16-11344

2 

weapon—a Glock 9-millimeter caliber pistol—together with a drum magazine 

for that firearm that can hold 50 rounds of ammunition, both of which 

investigators found in Rosa’s bedroom. 

A base offense level of 20 is proper if the Government shows that Rosa is 

a prohibited person and that his offense involved a semiautomatic firearm 

capable of accepting a large capacity magazine.2 Rosa, a convicted felon, does 

not deny that he is a prohibited person. Assuming without deciding the 

commentary to § 2K2.1(a)(4)(B)(i)(I) is authoritative,3 the Government is 

required to show that the semiautomatic firearm involved in Rosa’s offense, 

i.e., the Glock 9-millimeter pistol, is capable of firing “many rounds without 

reloading.”4 That showing could be made by demonstrating that “at the time of 

the offense . . . a magazine or similar device that could accept more than 15 

rounds of ammunition was in close proximity to the firearm.”5 Rosa has 

abandoned his district court argument that the drum magazine the 

investigators seized was not in close proximity to the pistol.6

The sole remaining question is whether the district court erred in its 

implicit determination that the Government met its burden of showing that 

the seized Glock pistol is capable of receiving the seized drum magazine, i.e., 

that they are compatible, and that the drum magazine can accept more than 

15 rounds of ammunition.7 The PSR stated that Rosa’s offense involved the 

Glock semiautomatic firearm and that he possessed with it a drum magazine 

that can hold 50 rounds of ammunition. Rosa introduced no evidence to dispute 

 

2 See U.S.S.G. § 2K2.1(a)(4)(B); United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.

2011). 

3 Stinson v. United States, 508 U.S. 36, 37–38 (1993).

4 § 2K2.1 cmt. n.2.

5 Id.

6 See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).

7 See Rodriguez, 630 F.3d at 380; United States v. Castillo, 430 F.3d 230, 238–39 (5th 

Cir. 2005).

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the PSR as to this issue.8 Instead, he argues that the evidence does not 

establish that anyone physically determined the large capacity drum magazine 

actually fit or could be accepted by the Glock firearm. He cites no precedent of 

our court requiring such a determination. Moreover, Collin County (Texas) 

Sheriff’s Office Investigator Gerald Rutledge validated the PSR when he 

testified, based on his 25 years of experience with Glock pistols, that the drum 

magazine found in Rosa’s bedroom is a Glock magazine made to hold more than 

50 rounds and is compatible with the pistol found in the bedroom. 

By adopting the PSR, the district court implicitly accepted Rutledge’s 

testimony about the compatibility of the pistol and the drum magazine.9 Rosa 

does not show that we should ignore precedent and not defer to the district 

court’s credibility determination.10 Nor does he show that the district court’s 

finding about compatibility is implausible,11 or that we could arrive at a 

definite and firm conviction that a mistake was made.12 Rutledge emphasized 

that he had sufficient experience to be able to say that the Glock pistol at issue 

can accept the Glock drum magazine at issue. The district court was entitled 

to rely on that testimony.13

Additionally, Rosa asserts that 18 U.S.C. § 922(g) is unconstitutional 

because it regulates conduct falling outside the Government’s power to 

regulate commerce and does not require a sufficient mens rea. He 

acknowledges that the claim is foreclosed by precedent and raises it to preserve 

it for further review. 

AFFIRMED. 

 

8 See United States v. Angulo, 927 F.2d 202, 204 (5th Cir. 1991).

9 See United States v. Ford, 558 F.3d 371, 376–77 (5th Cir. 2009); United States v. 

Lowder, 148 F.3d 548, 552 (5th Cir. 1998); see also U.S.S.G. § 6A1.3. 10 See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). 11 See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

12 See United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).

13 See U.S.S.G. § 6A1.3.

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