United States v. Zuniga

1
United States Court of Appeals
for the Fifth Circuit

No. 20-10356
Summary Calendar

United States of America,

Plaintiff—Appellee,
versus

Crystal Zuniga,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-357-1

Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Crystal Zuniga pleaded guilty to maintaining a drug-involved
premises, in violation of 18 U.S.C. § 856(a)(1). Following a contested
sentencing hearing, the court sentenced her to, inter alia, a within-Sentencing
Guidelines term of 121-months’ imprisonment. Zuniga challenges the
court’s application of the two-level sentencing enhancement under

*
Pursuant to 5th 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 8, 2020

Lyle W. Cayce
Clerk
Case: 20-10356 Document: 00515665187 Page: 1 Date Filed: 12/08/2020

2
Guideline § 2D1.1(b)(12) for maintaining a drug premises. Relying on United
States v. John, 309 F.3d 298, 305–06 (5th Cir. 2002), she contends imposing
the enhancement constituted impermissible double-counting, asserting the
act of maintaining a drug premises is already factored into the base offense
level for violating 18 U.S.C. § 856(a)(1).
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
A district court’s imposing the Guideline § 2D1.1(b)(12) maintaining-
a-drug-premises enhancement is a factual finding reviewed for clear error,
United States v. Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017); but,
deciding whether the imposition of the maintaining-a-drug-premises
enhancement constitutes impermissible double counting is an application of
the Guidelines reviewed de novo, see United States v. Jones, 145 F.3d 736, 737
(5th Cir. 1998).
“Double counting is prohibited only if the particular guidelines at
issue specifically forbid it.” United States v. Jimenez-Elvirez, 862 F.3d 527,
541 (5th Cir. 2017) (internal quotation marks and citation omitted). Neither
Guideline § 2D1.1 nor § 2D1.8 expressly prohibits double counting. See
United States v. Gilford, 782 F. App’x 359, 360 (5th Cir. 2019).
AFFIRMED.
Case: 20-10356 Document: 00515665187 Page: 2 Date Filed: 12/08/2020