United States v. Caicedo

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1997
• Docket: 95-20514
• Status: Published

Opinion

REVISED United States Court of Appeals,

Fifth Circuit.

No. 95-20514.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ramon CAICEDO, Defendant-Appellant.

Jan. 7, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN*, District Judge.

KAZEN, District Judge:

Appellant Ramon Caicedo was convicted by a jury of conspiracy

to distribute cocaine. His sole complaint on appeal is that the

district court erred in increasing his offense level under §

2D1.1(b)(1) of the Federal Sentencing Guidelines ("USSG") for

possession of a firearm.

I. On August 18, 1994, Ramon Caicedo participated in cutting and

repackaging twenty-five kilograms of cocaine at the residence of a

confidential informant in Houston, Texas. Several persons met

there for the purpose of converting twenty-five kilos of cocaine to

a larger amount. Caicedo, who had studied chemistry at a Colombian

university, was in charge of the process and brought some of the

* Chief Judge of the Southern District of Texas, sitting by designation.

1 lab equipment to the informant's residence. United States Customs

Agents were maintaining continuous surveillance of the residence as

part of an undercover operation, and on August 19, 1994, they

obtained from the residence evidence of the drug processing.

According to the presentence report ("PSR"), the informant met with

Caicedo and others on numerous occasions between August 19, 1994,

and November 2, 1994, to discuss distribution of large quantities

of cocaine from Houston and Los Angeles to other parts of the

United States. The information was that Caicedo planned to process

and repackage additional quantities of cocaine for distribution,

but there was no evidence of any actual cocaine possession by him

after August 18, 1994.

Caicedo was arrested on November 2, 1994. Following Caicedo's

arrest, agents searched his Houston residence. They found kilo

presses, a blender, a scale, a gas mask, cans of acetone, and

notebook paper with chemical equations for drug processing. Agents

also found a 9mm pistol in the master bedroom, the same room where

they found the electronic scale containing cocaine residue, and a

shotgun in the hall closet where kilo presses containing cocaine

residue, acetone, and procaine were uncovered. Neither firearm was

loaded, but next to the 9mm pistol was a clip that went with the

handgun.

Caicedo was indicted on one count of conspiracy to distribute

cocaine. Following a trial, the jury found Caicedo guilty as

charged. The PSR also recommended a base offense level of 34 for

the amount of cocaine involved. The PSR called for a two-level

2 increase in the offense level because there were weapons possessed

in connection with the conspiracy. Caicedo objected to this upward

adjustment, but the district court overruled the objection. The

district court sentenced Caicedo to 210 months of imprisonment,

five years of supervised release, and a $5,000 fine. Caicedo

timely filed a notice of appeal.

II.

Caicedo contends that the district court erred in making the

two-level adjustment to his base offense level. Because the

decision to apply a sentencing guideline is a factual one, we

review only for clear error. United States v. Vital, 68 F.3d 114,

119 (5th Cir.1995).

USSG § 2D1.1(b)(1) permits a two-level increase in the

offense level "[i]f a dangerous weapon (including a firearm) was

possessed." This adjustment should be applied "if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense." USSG § 2D1.1, comment (n. 3). Weapon

possession is established if the government proves by a

preponderance of the evidence that a temporal and spatial

relationship existed between the weapon, the drug trafficking

activity, and the defendant. United States v. Eastland, 989 F.2d

760, 770 (5th Cir.), cert. denied, 510 U.S. 890, 114 S.Ct. 246, 126

L.Ed.2d 200 (1993). The government must provide evidence that the

weapon was found in the same location where drugs or drug

paraphernalia are stored or where part of the transaction occurred.

Id. That a weapon is unloaded is not dispositive. United States

3 v. Paulk, 917 F.2d 879, 882 (5th Cir.1990).

Caicedo argues that, although the firearms were found in his

residence when he was arrested on November 2, 1994, there was no

evidence that they were part of the drug conspiracy concerning the

cocaine that was repackaged at the confidential informant's

residence on August 18, 1994. Moreover, the firearms were far

removed in both time and space from the repackaging activity, and

Caicedo produced evidence at sentencing showing that the pistol had

been pawned at the time of the August offense.

Section 2D1.1(b)(1) requires only that a weapon be "present,"

reflecting a policy judgment that the danger of violence

"increase[s] when drug traffickers possess weapons." Id. comment

(n. 3). The firearms were found in close proximity to drug

paraphernalia with cocaine residue. Only two-and-a-half months had

elapsed between the August 18 incident and the weapons' discovery.

Moreover, Caicedo was not convicted merely of a single incident in

August but rather of a conspiracy which, as charged in the

indictment, lasted between August and November of 1994. There was

no evidence that he withdrew from that conspiracy. Indeed, the PSR

reflected that he discussed other drug transactions with

co-conspirators after the August 18, 1994 repackaging incident. To

demonstrate withdrawal, a defendant must show that he took

affirmative acts that were inconsistent with the object of the

conspiracy and communicated in a manner reasonably calculated to

reach the other conspirators. United States v. Puig-Infante, 19

F.3d 929, 945 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.

4 180, 130 L.Ed.2d 115 (1994) (citing United States v. United States

Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887, 57 L.Ed.2d

854 (1978)). Caicedo does not point to any evidence showing how or

when he withdrew from the conspiracy. The district court did not

clearly err in concluding that it was not "clearly improbable" that

the firearms were connected to the conspiracy offense. See United

States v. Vaquero, 997 F.2d 78, 85 (5th Cir.), cert. denied, 510

U.S. 1016, 114 S.Ct. 614, 126 L.Ed.2d 578 (1993).

III.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.