Case: 17-11035      Document: 00514522185         Page: 1    Date Filed: 06/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 17-11035                             June 21, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO REZA, also known as Pete Resa,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-56-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Pedro Reza pleaded guilty to conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846, and he was sentenced to 108
months of imprisonment and three years of supervised release. Reza argues
that the application of the firearm enhancement under U.S.S.G. § 2D1.1(b)(1)
was clearly erroneous because there was insufficient evidence to establish that
the firearm possessed by his coconspirator Victor Valdez-Rodriguez was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-11035     Document: 00514522185     Page: 2   Date Filed: 06/21/2018


                                  No. 17-11035

possessed in connection with the criminal activity. He asserts that he did not
know Valdez-Rodriguez, and he notes that Valdez-Rodriguez stated that he
possessed the firearm for personal protection because he was in a bad
neighborhood.    He contends that his responsibility for the firearm is too
attenuated to support the application of the enhancement.
      A district court’s decision to apply § 2D1.1(b)(1) is a factual one reviewed
for clear error. United States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th
Cir. 2015). However, an argument that “does not concern the specifics of the
factfinding, but, rather, whether the facts found are legally sufficient to
support the enhancement” is reviewed de novo. United States v. Zapata-Lara,
615 F.3d 388, 390 (5th Cir. 2010).
      Reza, Valdez-Rodriguez, and a third coconspirator, Jose Albarran, met
at an automotive shop to deliver cocaine to a confidential source. Valdez-
Rodriguez was in physical possession of a loaded firearm in the waistband of
his pants at the time Reza, Valdez-Rodriguez, and Albarran together were
delivering the cocaine. The district court found that “there was a clear nexus
between the gun, the cocaine, and the distribution. Further, Valdez-
Rodriguez’s possession of a firearm during the drug transaction was
reasonably foreseeable to the defendant because guns are common ‘tools of the
trade’ in the distribution of narcotics.”
      The district court could infer that Reza should have foreseen Valdez-
Rodriguez’s possession of the firearm based on the evidence that Valdez-
Rodriguez knowingly possessed the weapon while he and Reza committed the
offense by jointly engaging in concerted criminal activity involving a quantity
of cocaine sufficient to support an inference of intent to distribute. See United
States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).




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       Case: 17-11035   Document: 00514522185   Page: 3   Date Filed: 06/21/2018


                                 No. 17-11035

        Reza argues that Valdez-Rodriguez’s statement that he possessed the
gun for his personal protection means that it could not also be connected to the
offense. Valdez-Rodriguez’s assertion is insufficient to show that it was clearly
improbable that the gun was connected with the instant offense, particularly
because the gun was recovered from Valdez-Rodriguez’s waistband at the scene
of the cocaine transaction. See § 2D1.1(b)(1), comment. (n.11(A)). Accordingly,
the district court did not abuse its discretion in holding that the firearm was
possessed in connection with the offense. See Rodriguez-Guerrero, 805 F.3d at
196.
        AFFIRMED.




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