United States v. Diaz

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 13, 2002
• Docket: 02-10556
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10556 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN ANDREW DIAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:01-CR-62-ALL-C -------------------- December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Julian Andrew Diaz appeals his sentence following a guilty-

plea conviction for possession of a firearm by a convicted felon

and aiding and abetting, in violation of 18 U.S.C. §§ 2 and

922(g)(1). Diaz argues that the district court erred in

increasing his base offense level by four levels pursuant to

U.S.S.G. § 2K2.1(b)(5).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-10556 -2-

Section 2K2.1(b)(5) provides for a four-level sentencing

increase “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.” Relying

on United States v. Mitchell, 166 F.3d 748 (5th Cir. 1999), and

cases from other circuits, Diaz asserts that because the firearms

and drugs were not found in close physical proximity, the

Government was required to produce additional corroborating facts

to prove that the U.S.S.G. § 2K2.1(b)(5) enhancement was

warranted.

Mitchell did not involve U.S.S.G. § 2K2.1(b)(5), but

U.S.S.G. § 2K2.1(c)(1), which applies when “the defendant used or

possessed any firearm or ammunition in connection with the

commission or attempted commission of another offense.” U.S.S.G.

§ 2K2.1(c)(1)(emphasis added). We held the Government to a

higher burden in Mitchell because of this additional language.

See 166 F.3d at 756.

Although the firearms and the drugs were located in

different rooms of Diaz’s residence, the firearms were “readily

available” to Diaz and “were possessed and could have been used

to facilitate” his drug-related activities. See United States v.

Armstead, 114 F.3d 504, 512 (5th Cir. 1997); United States v.

Condren, 18 F.3d 1190, 1200 (5th Cir. 1994). The firearms thus

were possessed “in connection with” Diaz’s drug possession within

the meaning of U.S.S.G. § 2K2.1(b)(5). Accordingly, the district

court’s judgment is AFFIRMED.