United States v. Espinoza-Sanchez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 2001
• Docket: 00-41063
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41063 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUSTAVO ESPINOZA-SANCHEZ, also known as Jose Antonio Barreto,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (C-99-CR-372-1) -------------------- May 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Gustavo Espinoza-Sanchez appeals his conviction and sentence

for aiding and abetting possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and

18 U.S.C. § 2. He argues that the district court erred in

increasing his offense level by two points for possession of a

firearm during the commission of a drug offense pursuant to

U.S.S.G. § 2D1.1(b)(1).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. A defendant's sentence should be increased by two levels

whenever, in a crime involving the manufacture, import, export,

trafficking, or possession of drugs, the defendant possessed a

dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). “The adjustment

should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” Id. at

comment. (n.3).

We review a sentencing court’s factual determinations for

clear error. Here, it is uncontested that the firearm, the

cocaine, the drug paraphernalia, and Espinoza were all present in

the apartment and the apartment’s garage. Although Espinoza did

not own or live in the apartment, he had access to the apartment,

which was used for drug trafficking. The district court found that

the firearm was accessible to Espinoza because it was “not shut up

within a hidden compartment.” Moreover, the presence of a firearm

within the apartment was foreseeable to Espinoza because firearms

are tools of the trade for drug traffickers. See United States v.

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).

The district court found that it was not “clearly improbable”

that the firearm was connected to the offense and that an

enhancement under U.S.S.G. § 2D1.1(b) was warranted. Espinoza has

not shown that this or any other factual findings of the sentencing

court were clearly erroneous.

AFFIRMED.