United States Court of Appeals

for the Fifth Circuit

No. 19-50508

Summary Calendar

United States of America, 

Plaintiff — Appellee,

versus

Daniel Louis Lopez, 

Defendant — Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:18-CR-257-1

Before Higginbotham, Jones, and Costa, Circuit Judges.

Per Curiam:*

Daniel Louis Lopez appeals his conviction and life sentence for 

conspiracy to possess with intent to distribute at least 500 grams of a 

substance containing methamphetamine. He argues that the district court 

* Pursuant to 5TH CIRCUIT Rule 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opinion should not be published and is not precedent except under the limited 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 CIRcuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2020

Lyle W. Cayce

Clerk

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erred in denying his motion to withdraw his guilty plea, and he challenges the 

assessment of the two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for 

maintaining a premises for the purpose of distributing or manufacturing 

drugs.

The district court’s denial of Lopez’s motion to withdraw his guilty 

plea is reviewed for abuse of discretion. See United States v. McKnight, 570 

F.3d 641, 645 (5th Cir. 2009). Lopez’s argument on this issue implicates only 

two of the relevant factors: (1) whether he received close assistance of 

counsel and (2) whether his guilty plea was knowing and voluntary. See

United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). Specifically, he 

contends that his trial counsel did not provide close assistance and adequate 

representation in advising him about the guidelines range and sentence he 

could receive and that his guilty plea therefore was not made knowingly and 

voluntarily.

The record shows that Lopez was represented by his trial counsel 

throughout the proceedings and that Lopez indicated at his rearraignment 

hearing that he and counsel had discussed how the Sentencing Guidelines 

generally might apply in his case, he had sufficient time to visit with counsel 

and discuss his conspiracy charge and any possible defenses, and he was 

satisfied with counsel’s representation. Additionally, Lopez and counsel 

discussed entering into a plea agreement, even though Lopez ultimately 

pleaded guilty without a plea agreement. Regardless of whether counsel 

specifically advised Lopez before rearraignment that his guidelines range 

would be life imprisonment, these facts demonstrate that Lopez received 

close assistance of counsel. See United States v. Lord, 915 F.3d 1009, 1016 

(5th Cir.), cert. denied, 140 S. Ct. 320 (2019); McKnight, 570 F.3d at 647.

Lopez also has not shown that his guilty plea was unknowing or 

involuntary. He indicated at rearraignment that he understood his guidelines 

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range would be advisory only, he could be sentenced above or below the 

guidelines range, and his sentence could be as high as his offense’s statutory 

maximum of life imprisonment. Thus, he understood when he pleaded guilty 

that he could receive a life sentence.

Furthermore, he indicated at rearraignment that he was pleading 

guilty because he committed the offense, his guilty plea was not induced by 

any promise, and he was not threatened, coerced, or forced into pleading 

guilty. In light of his comments at rearraignment, Lopez has not shown that 

the factor of whether his guilty plea was unknowing or involuntary weighed 

in favor of withdrawal of the plea. See McKnight, 570 F.3d at 647 & n.2; 

United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001).

Lopez does not brief any argument on the remaining Carr factors, and 

he thus also has not shown that the district court abused its discretion based 

on any of those factors. See United States v. Washington, 480 F.3d 309, 317 

(5th Cir. 2007); see also United States v. Scroggins, 599 F.3d 433, 446-47 (5th 

Cir. 2010) (recognizing that appellant waives arguments that he does not 

adequately brief). The rule permitting the withdrawal of a guilty plea is not 

intended “to allow a defendant to make a tactical decision to enter a plea, 

wait several weeks, and then obtain a withdrawal if he believes that he made 

a bad choice in pleading guilty.” Carr, 740 F.2d at 345; accord United States 

v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988). Lopez has not shown an abuse 

of discretion with regard to the denial of his motion to withdraw his guilty 

plea.

With respect to the § 2D1.1(b)(12) enhancement, plain-error review 

applies because Lopez did not object to the enhancement in the district court. 

See United States v. Benitez, 809 F.3d 243, 249 (5th Cir. 2015); see also Davis 

v. United States, 140 S. Ct. 1060, 1061-62 (2020). The district court adopted 

the finding in the presentence report (PSR) that the enhancement applied 

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because Lopez “placed” a co-conspirator “in an apartment for the purpose 

of distributing methamphetamine.” Lopez argues that the facts in the PSR 

failed to establish that he had the requisite possessory interest or level of 

control to have “maintained” the apartment for purposes of § 2D1.1(b)(12) 

or that a primary use of the apartment was the distribution or manufacture of 

drugs.

“[A] district court may adopt the findings of the PSR without 

additional inquiry if those facts have an evidentiary basis with sufficient 

indicia of reliability and the defendant does not present rebuttal evidence or 

otherwise demonstrate that the information is materially unreliable.” United 

States v. Hearns, 845 F.3d 641, 650 (5th Cir. 2017) (internal quotation marks 

and citation omitted); accord United States v. Fuentes, 775 F.3d 213, 220 (5th 

Cir. 2014). For purposes of plain-error review, the application of the 

§ 2D1.1(b)(12) enhancement is not clear or obvious error if it is “subject to 

reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009); see 

United States v. Randall, 924 F.3d 790, 796 (5th Cir. 2019).

Any error in applying the enhancement is at least subject to reasonable 

dispute based on the uncontested and unrebutted information in the PSR, 

which was derived from investigative reports of law enforcement and thus 

could be properly found to be reliable. See United States v. Fuentes, 775 F.3d 

213, 220 (5th Cir. 2014); United States v. Vela, 927 F.2d 197, 201 (5th Cir. 

1991). Accordingly, Lopez has failed to meet his burden under the plain error 

standard of demonstrating that the assessment of the § 2D1.1(b)(12) 

enhancement was clear or obvious error. See Randall, 924 F.3d at 796.

AFFIRMED.

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