United States v. Fabela

82 F. App'x 992

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 16, 2003
• Docket: 03-10448
• Status: Unpublished

Opinion

PER CURIAM. *

Jesus Wilfredo Fabela appeals his sentence following a guilty plea conviction of conspiracy to possess with intent to distribute 500 grams or more of cocaine. Fabela argues that the district court erred in applying a two-level increase to the base offense level pursuant to U.S.S.G. § 2Dl.l(b)(l) for possession of a dangerous weapon during the offense.

The Government need not prove that Fabela had knowledge of the weapon’s existence. See United States v. Flucas, 99 F.3d 177, 179 (5th Cir.1996). A review of the record indicates that Fabela did not meet his burden of proving that it was “clearly improbable that the weapon was connected with the offense.” See U.S.S.G. § 2D1.1, comment, (n.3); United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997). Because the Government showed that Fabela’s co-defendant knowingly possessed a weapon while they committed the offense and because firearms are the “tools of the trade” in drug conspiracies, the district court did not clearly err in finding that Fabela should have foreseen his co-defendant’s possession of a dangerous weapon. See United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.1990).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.