USA v. Jonathan Smith, No. 15-11080 (5th Cir. 2016)

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The court issued a subsequent related opinion or order on July 11, 2016.

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Case: 15-11080 Document: 00513578262 Page: 1 Date Filed: 07/05/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-11080 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 5, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. JONATHAN BERNARD SMITH, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-148-1 Before JOLLY, WIENER, and COSTA, Circuit Judges. PER CURIAM: * Defendant-Appellant Jonathan Bernard Smith appeals his sentence for conspiracy to possess with intent to distribute a controlled substance. He complains that the district court erred when it increased his offense level by two levels pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a drug-related premises. Our review is for clear error. See United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-11080 Document: 00513578262 Page: 2 Date Filed: 07/05/2016 No. 15-11080 Smith contends that the court erred in finding that drug distribution was one of his primary or principal uses of the premises because he did not have a possessory interest in the premises or distribute drugs from inside, or control access to, the home. We need not decide this question because any error was harmless. The district court stated that it would impose the same sentence regardless of whether it was correct regarding the premises enhancement. The district court explained that its sentence was based on Smith’s cooperation and the fact that he intended to engage in violence by robbing an undercover agent during a drug transaction. The court further explained that the sentence was appropriate to provide just punishment, to protect the public, and to provide deterrence. In light of the foregoing, any error was harmless. See United States v. Gutierrez-Mendez, 752 F.3d 418, 430 (5th Cir. 2014). AFFIRMED. 2