United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10577

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Guilibaldo Garcia-Rodriguez, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:22-CR-146-2 

______________________________

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Guilibaldo Garcia-Rodriguez appeals the sentence imposed following 

his conviction for conspiracy to possess with intent to distribute cocaine. He 

challenges the district court’s assessment of a two-level increase to his 

offense level for the possession of a dangerous weapon because he argues that 

his co-defendant, Rigoberto Barreto-Pineda, owned and possessed the 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2024

Lyle W. Cayce

Clerk

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No. 23-10577

2

firearm. Because Garcia-Rodriguez preserved the issue for appeal, we review 

the district court’s interpretation of the guidelines de novo and its factual 

findings for clear error. See United States v. Fernandez, 770 F.3d 340, 342, 

344–45 (5th Cir. 2014). 

Section 2D1.1 provides for a two-level enhancement “[i]f a dangerous 

weapon (including a firearm) was possessed” during a drug trafficking 

offense. U.S.S.G. § 2D1.1(b)(1). The Government has the burden to prove 

possession of a weapon by a preponderance of the evidence, which it may do 

by “showing a temporal and spatial relationship of the weapon, the drug 

trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 

F.3d 388, 390 (5th Cir. 2010). Such a relationship exists if “the weapon was 

found in the same location where drugs or drug paraphernalia are stored or 

where part of the transaction occurred.” Id. If the Government sufficiently 

demonstrates possession, the burden shifts to the defendant to show that it is 

clearly improbable that the possessed weapon was connected to the offense. 

Id. at 391 n.5. 

The unrebutted facts in the record support the district court’s finding 

that Barreto-Pineda’s possession of a firearm was reasonably foreseeable to 

Garcia-Rodriguez. See United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 

2006). The presentence report establishes that after Garcia-Rodriguez and 

Barreto-Pineda conducted a drug transaction with a confidential informant, 

they refused to pull over for a traffic stop, and a chase ensued. During the 

pursuit, federal agents observed a red bag being thrown from the truck and 

located the bag, which contained 4,969 grams of cocaine, 25.43 grams of 

cocaine base, a semi-automatic pistol, a loaded magazine, and BarretoPineda’s cell phone. Given the temporal and physical proximity of the 

firearm to the drug activity and Garcia-Rodriguez himself as well as this 

court’s recognition of firearms as tools of the drug trade, the district court’s 

relevant findings applying the dangerous-weapon enhancement were not 

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implausible in light of the whole record. See United States v. Aguilera-Zapata, 

901 F.2d 1209, 1215 (5th Cir. 1990).

Garcia-Rodriguez asks us to revisit our precedent and reconsider what 

he calls a “strict liability” approach to § 2D1.1(b)(1). He correctly

recognizes, however, that the rule of orderliness bars his argument absent an 

intervening change in the law and raises the issue to preserve it for further 

review. See United States v. Boche-Perez, 755 F.3d 327, 334 (5th Cir. 2014). 

The district court’s judgment is AFFIRMED. Garcia-Rodriguez’s 

motion to amend the caption is DENIED.

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