Case: 23-10577 Document: 101-1 Page: 1 Date Filed: 06/25/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10577 Summary Calendar FILED ____________ June 25, 2024 Lyle W. Cayce United States of America, Clerk 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.

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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 Barreto- Pineda’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.