United States v. Jimenez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11018 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLORENTINO NUNEZ JIMENEZ, also known as Javier Padilla Avila,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:95-CR-102-4-Y -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Florentino Nunez Jimenez (“Nunez”) appeals the sentencing

following his guilty plea for distribution of pure

methamphetamine. Nunez argues that the district court erred in

assessing a two point sentencing enhancement for possession of a

firearm during the commission of the convicted offense. Nunez

also argues that the district court erred in refusing to award

him credit for the time that he served in state confinement.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11018 -2-

The district court’s decision to enhance Nunez’ offense

level for possession of a firearm under § 2D1.1(b)(1) is a

factual determination that this court reviews for clear error.

United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir. 1996).

The firearm adjustment was not clearly erroneous because the gun

was found in Nunez’ bedroom, where the drugs were also found, and

because Nunez failed to establish that it was “clearly

improbable” that the gun was connected with the offense. See

United States v. Vasquez, 161 F.3d 909, 913 (5th Cir. 1998).

Nunez’ argument regarding the district court’s failure to

credit him for the time that he served in state custody is

foreclosed by United States v. Wilson, 503 U.S. 329, 331-32, 334

(1992).

For the foregoing reasons, Nunez’ sentence is AFFIRMED.