IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40939

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTHONY JACOB SANCHEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-1018-2

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Anthony Jacob Sanchez appeals his 52-month sentence imposed following

his guilty-plea conviction for conspiracy to possess, with intent to distribute, less

than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), 846. Sanchez contends the district court violated Sentencing Guideline

§ 6A1.3, p.s., and Federal Rule of Criminal Procedure 32(i)(3)(B), by overruling

his objection to the Guideline § 2D1.1(b)(1) two-level enhancement for possession

of a dangerous weapon, without resolving disputed facts. He further contends

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2011

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. 10-40939

the court clearly erred in imposing the two-level enhancement because: the

Government did not demonstrate, by a preponderance of the evidence, that his

codefendant’s possession of the firearm was reasonably foreseeable to him; and

that possession was not connected to the offense.

Although Sanchez challenged the enhancement in district court, he did not

object at sentencing to the district court’s claimed failure to comply with

Guideline § 6A1.3 or Rule 32. Accordingly, that contention is reviewed only for

plain error. See, e.g., United States v. Reyna, 358 F.3d 344, 347-50 (5th Cir.

2004); United States v. Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001). To

demonstrate reversible plain error, Sanchez must show a clear or obvious error

that affects his substantial rights. E.g., Puckett v. United States, 129 S. Ct.

1423, 1429 (2009). If reversible plain error is shown, our court retains discretion

to correct it and, generally, will do so only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

Our court has “rejected the proposition that a [sentencing] court must

make a catechismic regurgitation of each fact determined”. United States v.

Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (citations and internal quotation

marks omitted). Instead, it may “make implicit findings by adopting the

[presentence investigation report (PSR)]”. Id. The record does not show that the

portion of the video recording submitted by defense counsel at sentencing was

evidence demonstrating that any of the underlying facts provided in the PSR

were inaccurate or materially untrue. See United States v. Washington, 480 F.3d

309, 320 (5th Cir. 2007).

The court considered the contentions of the parties, including those by

defense counsel that the possession of the firearm by Sanchez’ codefendant was

not foreseeable to Sanchez and that the firearm possession was not connected to

the offense. Moreover, the court adopted, in relevant part, the PSR, which

provided that Sanchez’ codefendant, who lived with Sanchez, showed the loaded

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weapon to the confidential informant in the bedroom, where the weapon was

located during the course of the drug transaction.

Accordingly, we are “not presented with a record that leaves this court

‘second-guessing’ the basis of the sentencing court’s decision”. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 765 (5th Cir. 2008). With respect to Sanchez’

contention that the court failed to resolve disputed facts, he has not identified

an error that is obvious or “readily apparent”. See United States v. Vital, 68 F.3d

114, 119 (5th Cir. 1995); see Puckett, 129 S. Ct. at 1429.

As noted, Sanchez also contends, as he did in district court, that the

district court erred in imposing the two-level enhancement under Guideline

§ 2D1.1 because, as discussed above: the Government did not show, by a

preponderance of the evidence, that his codefendant’s firearm possession was

reasonably foreseeable to Sanchez; and because that possession was not

connected to the offense. Although post-Booker, the Sentencing Guidelines are

advisory only, and an ultimate sentence is reviewed for reasonableness under an

abuse-of-discretion standard, the district court must still properly calculate the

guideline-sentencing range for use in deciding on the sentence to impose. Gall

v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the

guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

Cisneros-Gutierrez, 517 F.3d at 764; United States v. Villegas, 404 F.3d 355, 359

(5th Cir. 2005).

Accordingly, the court’s decision whether to impose Guideline § 2D1.1’s

enhancement is reviewed de novo, but the facts found in applying that guideline

are reviewed only for clear error. United States v. Zapata-Lara, 615 F.3d 388,

390 (5th Cir. 2010). “Clear-error review only requires a factual finding to be

plausible in light of the record as a whole.” United States v. Rodriguez, 630 F.3d

377, 380 (5th Cir. 2011). The unrebutted facts reveal: Sanchez’ codefendant

knowingly possessed the firearm during the course of the methamphetamine

transaction at their shared residence; and Sanchez’ codefendant showed the

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loaded firearm to the confidential informant while they waited in the bedroom

for Sanchez to return with the drugs. The court’s finding is plausible based on

the record as a whole. See Cisneros-Gutierrez, 517 F.3d at 765-66.

AFFIRMED.

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