### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 50376

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. DAVID MEDRANO

- RODRIGUEZ,
Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:12

- CR

- 785

- 1

Before REAVLEY, SMITH and GRAVES, Circuit Judges

. PER CURIAM: * Defendant

- Appellant David Medrano

- Rodriguez challenges the application of a two

- level sentencing enhancement for making a credible threat of violence in connection with a drug trafficki ng offense

. We affirm. I. Factual and Procedural Background David Medrano

- Rodriguez pleaded guilty to possession with intent to distribute 500 grams or more of m ethamphetamine. 21 U.S.C. § 841(a)(1) ,

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 8, 2015 Lyle W. Cayce Clerk Case: 14-50376 Document: 00512998394 Page: 1 Date Filed: 04/08/2015No. 14

- 50376 (b)(1)(A)(viii). The presentence report ( “ PSR ” ) described the circumstances of the offense

. On April 17, 2012, Border Patrol agents apprehended four aliens near Dimmit County, Texas , all of whom ad mitted to being in the United States illegally. After the agents received notice that an abandoned bundle of marijuana was discovered nearby, the agents searched the aliens’ backpacks. Medrano

- Rodriguez consented to a search . The search revealed four generic brand fruit cans inside his backpack. Medrano

- Rodriguez took responsibility for the items in the backpack and told the agents that the cans contained food

. The PSR reflects that drug detection canines did not detect drugs. Medrano

- Rodriguez and the other aliens were transported to the Laredo West Station for “ processing. ” Subsequen tly, a gents transferred custody of the aliens to the Carrizo Springs, Texas, Border Patrol Station. A gents interviewed one of the female aliens, Dilcia Mabel Castillo

- Ruiz, who indicated that she was part of a group of 60 illegal aliens that crossed into the United States i n April 2012. She stated that Medrano

- Rodriguez was one of the four guides for the aliens

. According to the PSR: During the apprehension she was placed in a small group with other aliens who had been arrested, including Medrano

- Rodri guez. She indicated Medrano

- Rodriguez had his backpack in his possession during [processing] (Border Patrol agents had not discovered the drugs in the fruit cans at this time). While sitting on a bench, Medrano

- Rodriguez threatened her by telling her not to say anything because she does not know who he is and what he can do. Castillo

- Ruiz indicated she was fearful of Medrano

Rodriguez

. Castillo

- Ruiz told the agents that Medrano

- Rodriguez had drugs inside the fruit cans in his backpack. T he cans had been w elded or soldered closed. When opened , a gent s discovered that e ach can contained a b undle of methamphetamine wrapped in cellophane . The DEA determined that the

2 Case: 14-50376 Document: 00512998394 Page: 2 Date Filed: 04/08/2015No. 14

- 50376 seized methamphetamine had a net weight of 1.47 kilograms and a purity level of 99.7 per cent. Applying the 2012 Sentencing Guidelines, the PSR recommended a base offense level of 36 pursuant to U.S.S.G. § 2D1.1(a)(5), for an offense involving 500 gr ams to 1.5 kilograms of “ice.” 1 Among other enhancements not challenged on appeal, t he PSR recommend ed a two

- level increase for making a credible threat to use violence pursuant to § 2D1.1(b)(2)

. The violence enhancement was based on Castillo

- Ruiz’s statement that Medrano

- Rodriguez threatened her about speaking to the agents. Medrano

- Rodriguez filed w ritten objections to the PSR, challenging , inter alia, the violence enhancement. He argued that § 2D1.1(b)(2) did not apply to the threat he made after he was in the custody of the Border Patrol, that the statement was not a threat to use violence , and t hat it was not a credible threat. 2 At sentencing, the district court overruled Medrano

- Rodriguez’s objections. The court adopted the PSR, and determined that the advisory guidelines range was 292 to 365 months. Medrano

- Rodriguez requested a downward va riance , which the district court granted. The court sentenced Medrano

- Rodriguez to a below

- guidelines sentence of 188 months of imprisonment and five year s of supervised release. Medrano

- Rodriguez appeal s his sentence

. II. Analysis We review the district court’s interpretation and application of the Guidelines de novo and its factual findings for clear error. United States v.

1 Note (C) to the § 2D1.1(c) Drug Quantity Table defines “ i ce” as d

- methamphetamine hydrochloride with a purity of at least 80%. 2 Medran o - Rodriguez has not raised the latter two issues on appeal, and we do not address them. 3 Case: 14-50376 Document: 00512998394 Page: 3 Date Filed: 04/08/2015No. 14

- 50376 Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). On appeal, Medrano

Rodriguez argues only that his threat of v iolence is not covered by § 2D1.1(b)(2) because it was not made “during” a drug trafficking offense. U.S.S.G. § 2 D1.1 , which is applicable to drug trafficking offenses, provides that a defendant’s offense level is increased by two levels if he “used viol ence, made a credible threat to use violence, or directed the use of violence.” § 2D1.1(b)(2). The background commentary to § 2D1.1 provides that subsection (b)(2) implements § 5 of the Fair Sentencing Act (“FSA”). § 2D1.1(b)(2), comment. (backg’d). S ection 5 of the FSA directs the Sentencing Commission to “ review and amend the Federal sentencing guidelines to ensure that the guidelines provide an additional penalty increase of at least 2 offense levels if the defendant used violence, made a credible t hreat to use violence, or directed the use of violence du ring a drug trafficking offense

. ” FSA, Pub. L. No. 111

- 220, § 5, 124 Stat. 2372

. Accordingly, i n amending § 2D1.1 to create the violence enhancement , the Commission explained that § 2D1.1(b)(2) was a new specific offense characteristic that implemented § 5 of the FSA

. Supplemen t to the 2010 Guidelines Manual, App. C, Amend. 748 , at 43 (Nov. 1, 2010) (quoting § 5 of the FSA)

. Medrano

- Rodriguez argues that Congress and th e Sentencing Commission limited the application of § 2D1.1(b)(2) t o the use or threatened use of violence “ during a drug trafficking offense, ” even though the text of § 2D1.1(b)(2) does not contain such a textual limitation. He argues that he did not make a threat “during” the drug trafficking offense, but instead made the threat after he was in custody

. We need not address the many legal and factual technicalities of this argument, because Medrano

- Rodriguez’s argument fails by its own terms. Even if we were to accept his argument that the history of § 2D1

. 1(b)(2) and the commentary to the Guidelines amendment limit the violence enhancement 4 Case: 14-50376 Document: 00512998394 Page: 4 Date Filed: 04/08/2015No. 14

- 50376 to defendants who used or threatened violence “during a drug trafficking offense , ” the enhancement was proper ly appl ied here

. T he PSR is clear that Medrano

- Rodriguez made the threat while he still had the backpack containing the undetected methamphetamine

. The fact that he was in custody for an immigration violation or on possible suspicion of a different offense does not alter our conclusion. Medrano

- Rodriguez continued to possess the drugs after his apprehension by the Border Patrol, and he threate ne d Castillo

- Ruiz in an attempt to avoid detection of his drug trafficking offense. T hus, the threat occurred “du ri ng a drug trafficking offense” according to any reasonable construction of the term. The district court correctly applied § 2D1. 1(b)(2)

. III. Conclusion For the foregoing reasons, the judgment of the district court is AFFIRMED.

5 Case: 14-50376 Document: 00512998394 Page: 5 Date Filed: 04/08/2015