Case: 12-40321       Document: 00512156335         Page: 1     Date Filed: 02/26/2013




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

                                                                            FILED
                                                                         February 26, 2013
                                     No. 12-40321
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCO GUZMAN-VELASQUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-391-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Marco Guzman-Velasquez appeals his conditional-guilty plea conviction
for being an alien in possession of firearms, in violation of 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2). He first challenges the denial of his motion to
suppress the firearms found during a search of a residence located at 3512 Violet
Avenue in McAllen, Texas, and the search of an apartment that he shared with
codefendant Carlos Rios-Davila.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40321

      In considering a ruling on a motion to suppress based on live testimony,
we generally review a district court’s conclusions on Fourth Amendment issues
de novo and its factual findings for clear error. United States v. Gomez-Moreno,

, 354 (5th Cir. 2007). “Factual findings are clearly erroneous only
if a review of the record leaves this [c]ourt with a definite and firm conviction
that a mistake has been committed.” United States v. Hearn, 

, 101
(5th Cir. 2009) (internal quotation marks omitted). The evidence is considered
in the light most favorable to the prevailing party, which in this case is the
Government. United States v. Troop, 

, 409 (5th Cir. 2008). We may
affirm the district court’s decision on any basis in the record. United States v.
Mata, 

, 284 (5th Cir. 2008).
      With regard to the search of the Violet Avenue residence, Guzman-
Velasquez argues that the district court erred when it ruled that he lacked
standing to challenge the search. Guzman-Velasquez fails to demonstrate that
he had an individual subjective and legitimate expectation of privacy in the
residence. See Minnesota v. Carter, 

, 90 (1998); United States v.
Vega, 

, 795 (5th Cir. 2000), abrogated on other grounds, as
recognized in United States v. Aguirre, 

, 611 n.13 (5th Cir. 2011).
Rather, the evidence adduced at the suppression hearing showed that he was a
mere visitor and thus not entitled to Fourth Amendment protection. See United
States v. Majors, 

, 795 (5th Cir. 2003).
      With regard to the search of the apartment he shared with Rios-Davila,
Guzman-Velasquez argues that the district court erred in finding that Rios-
Davila validly consented to the search.          Guzman-Velasquez avers that
Rios-Davila’s consent was invalid because it was tainted by Rios-Davila’s prior
illegal detention in the backyard of the Violet residence and that the taint had
not been purged. This argument is raised for the first time on appeal. In this
circuit, a defendant’s failure to “raise specific issues or arguments in pre-trial
suppression proceedings operates as a waiver of those issues or arguments for

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                                    No. 12-40321

appeal.” United States v. Pope, 

, 918-19 (5th Cir. 2006). However,
this court has “often proceeded to evaluate the issues under a plain error
standard for good measure.” United States v. Scroggins, 

, 448 (5th
Cir. 2010). Guzman-Velasquez has not demonstrated that any error in the
denial of the motion to suppress the firearms recovered from his apartment
affected his substantial rights. See 

; Puckett v. United
States, 

, 135 (2009).
      Guzman-Velasquez contends next that the district court erred in imposing
the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). We review the
district court’s interpretation or application of the Guidelines de novo, and its
factual findings for clear error. See United States v. Johnson, 

, 472
(5th Cir. 2010). “In determining whether a Guidelines enhancement applies, the
district court is allowed to draw reasonable inferences from the facts, and these
inferences are fact findings reviewed for clear error.” United States v. Coleman,

, 708 (5th Cir. 2010).
      Section § 2K2.1(b)(6) provides that the base offense level for a firearms
offense should be increased by four levels “[i]f the defendant used or possessed
any firearm . . . in connection with another felony offense.” The enhancement
applies if the firearm “facilitated, or had the potential of facilitating, another
felony offense.” § 2K2.1, comment. (n.14(A)). “‘Another felony offense’, for
purposes of subsection (b)(6), means any Federal, state, or local offense, other
than the explosive or firearms possession or trafficking offense, punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal
charge was brought, or a conviction obtained.” § 2K2.1, comment. (n.14(C)).
      The district court’s finding that Guzman-Velasquez’s firearm possession
occurred in connection with another felony offense, to wit, the felony offense of
smuggling weapons from the United States into Mexico, was plausible in light
of the record as a whole and, thus, not clearly erroneous. See United States v.



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                                 No. 12-40321

Juarez, 

, 255 (5th Cir. 2010); 

. The
judgment of the district court is affirmed.
      AFFIRMED.




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