IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20749

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

RUDOLFO CARRANZA-MALDONADO, also known as Rodolfo Carranza, 

also known as Rudy Little-R., also known as Rudolfo Carranza, also known 

as Rudolfo Caranza, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CR-183

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Rudolfo Carranza-Maldonado appeals his four-level sentence 

enhancement for possessing a firearm in connection with another felony 

offense. For the reasons explained below, we VACATE the enhancement and 

REMAND for resentencing. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2015

Lyle W. Cayce

Clerk

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No. 14-20749

2

I.

 Houston Police Department officers arriving at an apartment complex 

parking lot in response to a call about a suspicious person observed Carranza 

and three others enter a vehicle. An officer noticed Carranza attempt to hide 

something under the driver’s seat where he sat. Officers also detected the 

smell of marijuana emitting from the vehicle as they approached. Officers 

detained the occupants and searched the vehicle. They found a loaded semiautomatic pistol under Carranza’s seat and two plastic bags containing 

approximately 100 grams of marijuana under the front passenger seat.

Carranza was arrested, and he pleaded guilty to possessing a firearm while he 

was “illegally . . . in the United States.” 18 U.S.C. § 922(g)(5)(A). The 

passenger, Cavazo, was also arrested and later convicted in state court of 

misdemeanor possession of marijuana. 

The presentence report (PSR) concluded that Carranza possessed the 

firearm in connection with a state marijuana felony, which resulted in a fourlevel enhancement under section 2K2.1(b)(6)(B) of the Guidelines. Carranza 

objected to this enhancement, arguing that there was no evidence linking him 

to the marijuana found under Cavazos’s seat. The district court overruled the 

objection, adopted the PSR, and sentenced Carranza at the low end of the 

Guidelines to 27 months. If the district court had not applied the disputed 

enhancement, the Guidelines range would have been 15 to 21 months. 

II.

Under section 2K2.1(b)(6)(B) of the Guidelines, a four-level enhancement 

is applied if the defendant “used or possessed any firearm or ammunition in 

connection with another felony offense.” We review the district court’s factual 

determination that an enhancement applies for clear error, which requires us 

to determine whether application of the enhancement was “plausible in light 

of the record as a whole.” United States v. Williams, 610 F.3d 271, 292 (5th 

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Cir. 2010) (internal quotations omitted). Any legal questions are reviewed de

novo. United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002); see

also United States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015)

(noting that legal questions involving the applicability of the Guidelines are 

reviewed de novo).

The “other felony offense” cited in the PSR is “delivery of marihuana,”

which is a state jail felony under Texas law. Tex. Health & Safety Code 

§ 481.120(b)(3) (providing state jail felony for delivery offense involving “five 

pounds or less but more than one-fourth once”). But as Carranza points out, 

at most the offense could be attempted delivery under state law as no 

marijuana was actually delivered. An attempt to commit a state jail felony is 

a misdemeanor. Tex. Penal Code § 15.01(d).

The government tries to resuscitate the enhancement by arguing that 

Carranza’s conduct would have nonetheless constituted a felony under the 

federal “possession with intent to distribute” statute (21 U.S.C. § 841(a)(1)) or 

a related conspiracy or aiding and abetting offense. It contends that the same 

factual basis supporting the district court’s conclusion that there was a 

sufficient connection between Carranza and the drugs to implicate the state

offense would support a similar finding for the federal offenses.

But we conclude that the scant record in this case provides an insufficient 

basis for tying the drugs to Carranza. Although a defendant’s control of a vehicle 

may support an inference that he constructively possesses contraband located 

inside, see, e.g., United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996)

abrogated on other grounds by United States v. Vargas-Ocampo, 747 F.3d 299, 

300–02 (5th Cir. 2014), all that has been established in this case is that 

Carranza sat in the driver’s seat of the van when officers arrived at the scene. 

The officer observed Carranza attempting to hide something under the driver’s 

seat, which supports the finding that he possessed the firearm found there. 

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But there is no evidence indicating that he owned the van or had previously 

driven it that would alone support a finding that he exercised control over the 

contents of other areas of the vehicle not within his immediate reach. This is 

especially true given that, like Carranza, Cavazos had only just entered the 

vehicle and sat in the seat beneath which the drugs were hidden. Cf. United 

States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) (holding that even when a 

defendant made furtive movements near a locked glove box where contraband 

was located, the passenger was in “exclusive control” of the contraband given 

that the key was found where the passenger had been sitting). The odor of 

burnt marijuana the government emphasizes is also consistent with the 

inference that Cavazos had been smoking the marijuana and hid his remaining 

stash beneath his seat. No cash, drug ledgers, or other evidence typical of a 

larger drug trafficking operation that might help tie the marijuana to Carranza 

were found at the scene. 

On this record, we cannot conclude that there was a sufficient basis for 

finding that Carranza possessed the firearm in connection with a drug felony

for which he can be held responsible. We VACATE Carranza’s sentence and 

REMAND for resentencing.

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