United States of America v. Jose S. Perez

United States Court of Appeals
For the Eighth Circuit
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No. 24-1286
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United States of America
Plaintiff - Appellee
v.
Jose S. Perez
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska
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Submitted: October 21, 2024
Filed: March 28, 2025
[Unpublished]
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.
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PER CURIAM.
A grand jury charged Jose S. Perez with conspiracy to distribute
methamphetamine and cocaine, possession with intent to distribute
methamphetamine, and possession of a firearm in furtherance of a drug trafficking
crime. See 21 U.S.C. §§ 841(a)(1), (b)(1), 846; 18 U.S.C. § 924(c)(1)(A). Perez

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pled guilty to the conspiracy and drug charges, and the district court1 granted the
government’s motion to dismiss the firearm charge. The district court sentenced
Perez to two concurrent 168-month sentences followed by five years of supervised
release. This sentence was based in part on the district court’s application of the
United States Sentencing Guidelines Manual (Guidelines) enhancements for
maintaining a drug distribution premises and for possessing a firearm in connection
with a drug offense. Perez appeals his sentence, arguing the district court erred in
applying the two enhancements. We affirm.
“We review the district court’s findings of fact for clear error and its
application of the guidelines de novo.” United States v. Coleman, 97 F.4th 566, 568
(8th Cir. 2024) (quoting United States v. Renteria-Saldana, 755 F.3d 856, 858–59
(8th Cir. 2014)). Perez argues the district court clearly erred in applying an
enhancement for maintaining a drug distribution premises under U.S.S.G.
§ 2D1.1(b)(12) because he neither owned nor rented the drug house. When
determining whether a defendant maintained a premises, the court considers
“whether the defendant had a possessory interest in the premises and the extent to
which the defendant controlled access to, or activities at, the premises.” United
States v. Anwar, 880 F.3d 958, 971 (8th Cir. 2018) (quoting Renteria-Saldana, 755
F.3d at 859). See U.S.S.G. § 2D1.1 cmt. n.17.
Here, the district court did not err in finding Perez maintained the challenged
premises for drug distribution. Perez used the house for storing drugs as evidenced
by the multiple pounds of drugs officers seized from it. Perez referred to the house
as “the trap,” a slang term for a place where drugs are stored, and he treated it like a
trap house, telling people to meet him there in order to provide them drugs. Evidence
also showed Perez controlled access to the house and frequently visited it. For
example, he offered to pay someone to clean it and invited people to it. Further, the
district court considered evidence of messages between Perez and his co-defendant
1 The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.

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“reflecting that drugs were used and distributed at this premises.” All these facts
support the district court’s finding that Perez maintained a premises for drug
distribution. Though Perez contends he did not own or lease the house, “[h]olding
title to the premises is not required” for the enhancement to apply. Anwar, 880 F.3d
at 971.
Perez also argues the district court clearly erred in applying a firearm
enhancement under U.S.S.G. § 2D1.1(b)(1), claiming it is clearly improbable he
possessed a firearm, particularly in light of the government’s decision to dismiss the
firearm charge after a jury acquitted his co-defendant of the same charge.2 We have
held the firearm enhancement “applies if the government proves, by a preponderance
of the evidence: (1) the gun was possessed, and (2) it was not clearly improbable
that the weapon was connected to the drug offense.” Coleman, 97 F.4th at 568
(quoting United States v. Rivera, 76 F.4th 1085, 1091 (8th Cir. 2023), cert. denied,
144 S. Ct. 861 (2024)). The connection is not clearly improbable when “there was
‘a temporal and spatial nexus among the weapon, defendant, and drug-trafficking
activity.’” United States v. Escobar, 909 F.3d 228, 240 (8th Cir. 2018) (quoting
United States v. Torres, 409 F.3d 1000, 1003 (8th Cir. 2005)). “This exists when
the weapon was found in the same location where drugs or drug paraphernalia were
located or where part of the conspiracy took place.” United States v. Voelz, 66 F.4th
1155, 1158 (8th Cir. 2023) (quoting United States v. Garcia, 772 F.3d 1124, 1125
(8th Cir. 2014)).
Here, the district court did not err in applying the firearm enhancement. First,
it was not erroneous to find Perez at least constructively possessed the firearm
2 To determine the sentencing range, the Guidelines permitted the district court
to consider all conduct proved by a preponderance of the evidence. See U.S.S.G. §§
1B1.3, 6A1.3 cmt. (2023). But Perez cites a recent Guidelines amendment which
limits the use of conduct for which a defendant was criminally charged but later
acquitted in federal court. See U.S.S.G. § 1B1.3(c) (2024). Perez was never
acquitted of the charged conduct — the charge was dismissed — so we need not
address the amendment’s application here.

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because the firearm was found in the house he maintained “in plain view sitting on
top of a debit or credit card issued to” him. Second, it was not clearly improbable
to find the requisite nexus when the firearm was found in the house on a shelf just
below two pounds of cocaine. The absence of Perez’s DNA on the firearm does not
alter this conclusion because “[t]he government need not show that the defendant
used or even touched a weapon to prove a connection between the weapon and the
offense.” Voelz, 66 F.4th at 1158 (quoting United States v. Fladten, 230 F.3d 1083,
1086 (8th Cir. 2000)). Therefore, we conclude the district court did not err in
applying the two challenged enhancements when calculating Perez’s advisory
Guidelines range.3
The judgment of the district court is affirmed.
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3 Perez also argues the district court abused its discretion by denying his
motion to file objections to the Presentence Investigation Report (PSR) out of time.
He argues Federal Rule of Criminal Procedure 32(i)(1)(D) conflicts with Nebraska
Criminal Rule 32.1(b)(6) — the local rule requiring renewed objections when a
revised PSR is submitted. We need not reach this issue because the district court
overruled his PSR objections not only for untimeliness but also “alternatively on the
merits,” determining the enhancements applied and the objections would have been
overruled “even if they had been filed timely.”

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