* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41592

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE CRUZ LOPEZ, JR

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-537

Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit

Judges

PER CURIAM:*

Jose Cruz Lopez, Jr., pleaded guilty to one count of possession of less than

50 kilograms of marijuana, in violation of 21 U.S.C. § 841. Lopez objected prior

to sentencing to the lack of a downward adjustment for a minor or minimal

participant role under U.S.S.G. § 3B1.2, and to the imposition of a two-level

enhancementfor possession of a firearm pursuantto U.S.S.G. § 2D1.1(b)(1). The

United States Court of Appeals

Fifth Circuit

F I L E D

November 13, 2007

Charles R. Fulbruge III

Clerk
No. 06-41592

2

district court overruled his objections and sentenced him to 27 months in prison,

within the sentencing guidelines range. Lopez appeals, and we affirm.

Whether a defendant is a minor or minimal participant is a factual

determination reviewed for clear error. United States v. Villanueva, 408 F.3d

193, 203 & n.9 (5th Cir. 2005). A § 3B1.2 reduction applies only when a

defendant is substantially less culpable than the average participant. Id. The

defendant’s role is not evaluated in reference to the entire enterprise but in

relation to the conduct for which the defendant was held accountable. United

States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001). Given (1) that Lopez was

responsible for packaging marijuana for another person on three occasions,

(2) the statement in the factual basis that he was seen delivering one of the

packages to the Post Office, and (3) the quantity of drugs involved, the district

court did not clearly err in concluding that a § 3B1.2 adjustment was not

warranted. 

With respect to the § 2D1.1 enhancement, we again review for clear error.

See United States v. Juluke, 426 F.3d 323, 328 (5th Cir. 2005). The Government

must demonstrate “by a preponderance of the evidence that a temporal and

spatial relation existed between the weapon, the drug trafficking activity, and

the defendant.” Id. The enhancement should be applied unless it is clearly

improbable that there was a connection between the weapon and the

enhancement. Id.

Although there was a two-year gap in time between the last identified

mailed package and the finding of the weapon, the weapon was located next to

an express mail package like the ones used previously, and the court found

Lopez’s claim of fear of home invasion not credible. Thus, we cannot say that the

district court clearly erred. In any event, any error would not require reversal.

The district court stated that it would impose the same sentence of 27 months

even without the enhancement based on Lopez’s criminal history. Absent any

indication that the sentence was unreasonable, see United States v. Smith,
No. 06-41592

3

440 F.3d 704, 707-08 (5th Cir. 2006), we may affirm the district court’s

alternative ruling that the sentence would be the same notwithstanding the

weapons enhancement. See United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th

Cir. 2006). 

The judgment of the district court is AFFIRMED.