Case: 18-40064       Document: 00514784215         Page: 1    Date Filed: 01/07/2019




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

                                      No. 18-40064                               FILED
                                                                           January 7, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

               Plaintiff – Appellee,

v.

SERGIO ADRIAN JUAREZ-ORTIZ,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:17-CR-1357-1


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       Sergio Adrian Juarez-Ortiz pleaded guilty to the offense of alien in
possession of ammunition, in violation of 18 U.S.C. § 922(g)(5). At sentencing,
he received a four-level enhancement for possessing the ammunition with
knowledge, intent, or reason to believe it would be transported out of the
United States. He was sentenced to 20 months’ imprisonment. On appeal, he
challenges the sufficiency of the evidence for applying the enhancement.


       * Pursuant to Fifth 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                 No. 18-40064
Because the district court did not clearly err by inferring that Juarez-Ortiz
possessed the requisite knowledge, intent, or reason to believe, we AFFIRM.
                                       I.
       On August 1, 2017, the U.S. Department of Homeland Security
Investigations (HSI) received information from a confidential source that
Juarez-Ortiz, a citizen of Mexico, had entered the United States on a non-
immigrant visa and purchased ammunition at an Academy Sports and
Outdoors Store in Pharr, Texas. It was later determined that Juarez-Ortiz had
entered the United States that day at approximately 10:35 a.m. in a Dodge
Ram truck and returned to Mexico, in the same vehicle, at approximately 3:30
p.m.    A subsequent investigation also revealed that Juarez-Ortiz had
previously entered the United States from Mexico with an individual named
Hugo Ismael Torres-Castro, another citizen of Mexico, who purchased large
quantities of ammunition in the United States between July and August of
2017. Torres-Castro made at least one of those ammunition purchases with a
debit card belonging to an individual named Luis Arturo Flores-Saldivar.
       On August 21, 2017, Juarez-Ortiz re-entered the United States from
Mexico in the same Dodge Ram truck at approximately 1:35 p.m. An HSI agent
followed him to an Academy Sports and Outdoors Store in Edinburgh, Texas,
where he was observed purchasing a large amount of ammunition and loading
it into the truck. The agent followed Juarez-Ortiz as he drove to a residence
in Mission, Texas. The agent observed that Torres-Castro and Flores-Saldivar
were also at the residence. After Juarez-Ortiz departed the residence in the
truck, HSI requested local police assistance and a subsequent traffic stop by
the Pharr Police Department revealed approximately 3,600 rounds of .223
caliber ammunition in the truck.
       Juarez-Ortiz pleaded guilty to being an alien in the United States under
a nonimmigrant visa in possession of firearms or ammunition, a violation of 18
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                                   No. 18-40064
U.S.C. § 922(g)(5). The Presentence Investigation Report (PSR) recommended
a four-level enhancement because Juarez-Ortiz possessed the ammunition
“with knowledge, intent, or reason to believe that it would be transported out
of the United States.” See U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)
(U.S. Sentencing Comm’n 2018). Juarez-Ortiz objected to the enhancement,
claiming it was based only on speculation. The district court overruled that
objection, and determined “that a preponderance of the evidence here [did]
support the finding that he purchased it with . . . knowledge[,] intent[,] or
reason to believe that it would be transported out of the United States.” After
applying downward departures for being a first-time offender and accepting
responsibility,   Juarez-Ortiz’s   Guidelines     range     was   18–24    months’
imprisonment, and he was sentenced to 20 months.              Juarez-Ortiz timely
appeals the four-level enhancement, contending that there was insufficient
evidence for the district court to find that he had knowledge, intent, or reason
to believe that the ammunition would be transported outside the United
States.
                                       II.
      “We review the district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error.” United
States v. Baker, 

, 620 (5th Cir. 2014). “A defendant seeking
reversal on the basis of insufficient evidence swims upstream.” United States
v. Gonzalez, 

, 873 (5th Cir. 2018) (alteration omitted) (quoting
United States v. Mulderig, 

, 546 (5th Cir. 1997)).
      “The government must prove the facts necessary to support a sentencing
enhancement by a preponderance of the evidence.” United States v. Reyna-
Esparza, 

, 294 (5th Cir. 2015). “[S]peculation as to the existence
of these facts [is] an insufficient basis to enhance[.]” United States v. Conner,

, 491 (5th Cir. 2008). However, “the sentencing court is permitted
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                                   No. 18-40064
to make common-sense inferences from the circumstantial evidence[,]” United
States v. Caldwell, 

, 292 (5th Cir. 2006), and a “factual finding is
not clearly erroneous if it is plausible in light of the record as a whole[,]” United
States v. Coleman, 

, 708 (5th Cir. 2010).
      “If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even [if] .
. . it would have weighed the evidence differently.”          Anderson v. City of
Bessemer, 

, 573–74 (1985).
                                        III.
      The district court made a factual finding, under a preponderance of the
evidence standard, that Juarez-Ortiz possessed the ammunition with
knowledge, intent, or reason to believe that it would be transported out of the
United States. Juarez-Ortiz contends that there was insufficient evidence for
the district court to reach that conclusion. His argument is that nothing in the
record specifically denotes an intent for the ammunition to be taken out of the
United States and that any inference made by the district court to that effect
was therefore purely speculative. We disagree.
      While it is true that no direct evidence in the record clearly indicates
that Juarez-Ortiz had knowledge, intent, or reason to believe the ammunition
would be taken out of the United States, “the sentencing court is permitted to
make common-sense inferences from the circumstantial evidence.” 

. Though the question is admittedly a close one, we believe that
there was sufficient circumstantial evidence to sustain the district court’s
finding that Juarez-Ortiz had the requisite knowledge, intent, or reason to
believe.   That circumstantial evidence included: (1) evidence that he had
previously entered the country, purchased ammunition, then crossed back
across the border only a few hours later; (2) the bulk quantity of ammunition
of which he was in possession; (3) evidence that he was associated with other
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                                  No. 18-40064
Mexican nationals who also purchased ammunition in bulk; (4) the absence of
any other business or recreational explanation for purchasing the ammunition
in bulk; (5) the fact that he still had the ammunition in the vehicle after
stopping at a residence where he could have unloaded it; and (6) the fact that
he was a resident of Mexico and likely to return there.
      In the face of this circumstantial evidence suggesting that he had
knowledge, intent, or reason to believe that the ammunition would be taken
back across the border, Juarez-Ortiz did not offer any significant evidence in
rebuttal, even when specifically pressed to do so by the district court. To the
contrary, when pressed by the district court to offer any evidence for why the
PSR’s conclusion was wrong, all that Juarez-Ortiz offered in response were
comments about his supposed good character; conclusory statements that he
did not have the requisite knowledge, intent, or reason to believe; and the
unsupported statement that he was “supposed to leave the ammunition” at the
house in Mission. In its capacity as factfinder, the district court was within its
discretion to discount the veracity of those statements, especially given the fact
that Juarez-Ortiz left the home in Mission with the ammunition still in his
vehicle. See also United States v. Ollison, 

, 164 (5th Cir. 2009)
(“Generally, a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing. . . . [I]n the absence of rebuttal
evidence, the sentencing court may properly rely on the PSR and adopt it.”
(quoting United States v. Ayala, 

, 690 (5th Cir. 1995))).
      For these reasons, we hold that the district court’s finding that Juarez-
Ortiz had knowledge, intent, or reason to believe the ammunition would be
taken outside the United States was plausible in light of the evidence. As such,
that factual finding was not clearly erroneous, and the district court did not
err in applying the four-level sentencing enhancement.
      The judgment of the district court is AFFIRMED.
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