     Case: 12-40597       Document: 00512326254           Page: 1    Date Filed: 07/30/2013




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

                                                                              FILED
                                                                             July 30, 2013
                                     No. 12-40597
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER DE JESUS BARRAGAN-MALFABON, also known as Javier Arturo
Barragan-Malfabon,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-73-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Javier De Jesus Barragan-Malfabon (Barragan) appeals the 87-month
sentence imposed following his guilty plea conviction to one count of possession
with intent to distribute 1000 kilograms or more of marijuana. He asserts that
the district court erred in imposing a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(12) (2011 version) for maintaining a premises for the


       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-40597

purpose of manufacturing or distributing a controlled substance. Because
Barragan objected to the imposition of this enhancement in the district court,
we review the district court’s application of the Sentencing Guidelines de novo
and its factual findings for clear error. See United States v. Villanueva, 408
F.3d 193, 203 & n.9 (5th Cir. 2005).
      Before this court, Barragan asserts that the enhancement should not
apply because there was no direct evidence that he was manufacturing or
distributing marijuana from the residence in question and because there was
no evidence of temporal continuity in the use of the residence for drug-related
purposes.   Under the plain language of the commentary to § 2D1.1, the
enhancement applies if the defendant stores controlled substances for the
purposes of ultimate distribution; Barragan pleaded guilty to possessing
marijuana with the intent to distribute it. See § 2D1.1, comment. (n.28). Even
if we assume that § 2D1.1(b)(12) includes a temporal element, Barragan
admitted that he had retrieved drugs on multiple occasions three months
before marijuana was found in his home, satisfying such a requirement.
      Barragan also argues that the enhancement was improper because the
primary purpose of the home was to house his family rather than to engage in
marijuana transactions. Under the Guidelines, the Government need show
only that the manufacturing or distribution of controlled substances is a
primary or principal use of the facility, rather than the exclusive purpose. §
2D1.1, comment. (n.28). The presentence report indicated that Barragan
maintained exclusive control over a locked room in the house that was
apparently used only for the storage of marijuana. He possessed over 1000
kilograms of marijuana in the house and was paid for the storage; Barragan
also was holding $81,220 for an unknown person.          Barragan had in his
possession a compressor and packaging materials; although he explained that


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                                No. 12-40597

he used the packaging to repair ripped bundles, he could not explain the
purpose of the compressor. A burned document that appeared to be a drug
ledger was found on Barragan’s barbecue pit, and Barragan’s brother
attributed the notebook to Barragan. The district court did not clearly err in
determining that the large amounts of marijuana and currency, combined with
evidence indicating that Barragan might be involved in packaging the drugs
and in either recording sales or destroying evidence of such sales, established
that a primary use of the home was the storage of controlled substances for
distribution purposes.   See Villanueva, 408 F.3d at 203 & n.9; § 2D1.1,
comment. (n.28).     Consequently, the judgment of the district court is
AFFIRMED.




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