United States v. Jori

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 27, 1999
• Docket: 98-20974
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20974 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO PAYAN JORI, also known as José Valoi, also known as Raul Caicedo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-67-10 --------------------

August 26, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Alfredo Payan Jori, also known as José Raul Valoi, (“Valoi”)

appeals from his sentence following his guilty-plea conviction of

violations of 21 U.S.C. § 846 and § 841(a)(1). He argues that

the district court violated Fed. R. Crim. P. 32(c)(1) by failing

to resolve the controversy over whether he possessed a gun during

the commission of the crime to which he pleaded. This contention

lacks merit, as the district court resolved this controversy when

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20974 -2-

it adopted the presentence report. The district court did not

err in adopting the report. See United States v. Mir, 919 F.2d

940, 943 (5th Cir. 1990). Further, this issue was properly

raised by Valoi for the first time in this appeal. See United

States v. Manotas-Mejia, 824 F.2d 360, 368 (5th Cir 1987).

Valoi also argues that the district court erred by applying

a two-level enhancement to his sentence pursuant to U.S.S.G.

§ 2D1.1(b)(1). Because the gun and the drugs were both found in

the townhome, their connection to the crime was not clearly

improbable. See United States v. Mitchell, 31 F.3d 271, 278 (5th

Cir. 1994); § 2D1.1, comment. (n.3). The district court did not

err in applying the enhancement.

AFFIRMED.