United States District Court, S.D. Texas, Laredo Division
Garcia Marmolejo United States District Judge.
States Magistrate Judge Song Quiroga issued a Report and
Recommendation in accordance with 28 U.S.C. § 636(b)(1)
recommending that Defendant's § 2255 Motion (Dkt.
No. 1; Cr. Dkt. No. 511) be DENIED and that
this action be DISMISSED. (Dkt. No. 4; Cr.
Dkt. No. 532). Plaintiff has since filed objections to the
Report and Recommendation, arguing that his offense level
should not have been enhanced due to the firearms found in
his home because his co-defendant-son took responsibility for
those weapons. (Dkt. No. 6; Cr. Dkt. No. 534).
Court conducts a de novo review of Plaintiffs objections and
applies a plain-error standard of review for the rest of the
proposed findings and recommendations. Having considered the
entire record, as well as arguments advanced by the parties,
the Court OVERRULES Plaintiffs objection and
hereby ADOPTS the Report and Recommendation
(Dkt. No. 4; Cr. Dkt. No. 532) as the findings and opinion of
the Court with two supplemental findings.
Defendant's counsel did raise an objection to
the Court's application of a two-level sentencing
enhancement under § 2D1.1(b)(1) (firearms enhancement).
(Sentencing Hr'g at 2:18:35-2:18:57). "[A]n
objection must be sufficiently specific to alert the district
court to the nature of the alleged error and to provide an
opportunity for correction." United States u.
Neal, 576 F.3d 270, 272 (5th Cir. 2009). Before
Defendant was sentenced, his attorney brought the Court's
attention to the question of whether the firearms enhancement
should be applied to his client, given that his
co-defendant-son had claimed ownership of all the weapons and
stated that he was willing to take full responsibility for
them. (Sentencing Hr'g at 2:18:35-2:18:52). The Court
began its response: "There were some weapons found at
[Defendant's] home and other weapons found at [his
co-defendant-son's] home; you look here at the
description of all the different weapons that were
discovered." (Sentencing Hr'g at 2:18:52-2:18:57).
Counsel pressed the issue, inquiring whether the Court would
nevertheless apply the two-level enhancement under §
2D1.1(b)(1). (Sentencing Hr'g at 2:19:02-2:19:03). That
exchange was sufficient to alert the Court to counsel's
opposition to enhancing Defendant's Guidelines range
under § 2D1.1(b)(1) in light of his
co-defendant-son's claims that he owned the firearms.
even if the Court assumes that only Defendant's
co-defendant-son possessed the firearms, it would not follow
that § 2D1.1(b)(1) was improperly applied to Defendant.
A defendant involved in a jointly undertaken criminal
activity is responsible for all acts and omissions of others
that occurred during the commission of the offense that were
"(i) within the scope of the jointly undertaken criminal
activity, (ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal
activity." U.S. SENTENCING Guidelines Manual §
1B1.3(a)(1)(B) (U.S. Sentencing Comm'n 2018); see
also United States v. Rodriguez-Guerrero, 805 F.3d 192,
195 (5th Cir. 2015) ("A defendant involved in a
'jointly undertaken criminal activity' is responsible
for 'all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal
activity.'" (quoting U.S.S.G. §
1B1.3(a)(1)(B)). Because "firearms are 'tools of the
trade in illegal drug activities, '" United
States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.
1990), "a sentencing court may often infer
foreseeability from a coconspirator's knowing possession
of a weapon," United States v. Zapata-Lara, 615
F.3d 388, 390 (5th Cir. 2010). In this case, the Court found
that Defendant's co-defendant-son possessed firearms in
connection with their underlying drug-trafficking offense.
(Dkt. Nos. 330 at 32; 440 at 1). It is therefore
"irrelevant that [Defendant] may not have known about
the gun or possessed it." United States v.
Garcia, 755 Fed.Appx. 391, 394 (5th Cir. 2018).
Defendant's § 2255 Motion (Dkt. No. 1; Cr. Dkt. No.
511) is DENIED, and this civil action is DISMISSED WITH
 "Dkt. No." refers to the
civil case, and "Cr. Dkt. No." refers to the