United States v. Leon-Gonzalez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-41428
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41428 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO LEON-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:99-CR-9-ALL -------------------- June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Francisco Leon-Gonzalez appeals his sentence for possession

of a firearm by an illegal alien and distribution of cocaine. 18

U.S.C. § 922(g)(5); 21 U.S.C. § 841(a)(1). Leon argues that the

district court erred in increasing his base offense level two

points under U.S.S.G. § 2K2.1(b)(4) on the ground that two of the

firearms involved in the offense were stolen. He contends that

he did not know that the firearms were stolen and that the

Government did not prove that the firearms were stolen.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41428 -2-

The enhancement under § 2K2.1(b)(4) applies whether or not

Leon knew or had reason to believe that the firearms were stolen.

See United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991);

§ 2K2.1, comment (n.19). Because Leon did not present rebuttal

evidence to refute the facts in the PSR concerning whether the

firearms were stolen, the district court did not err in adopting

the facts in the PSR and in increasing Leon’s offense level under

§ 2K2.1(b)(4). United States v. Sherbak, 950 F.2d 1095, 1099-

1100 (5th Cir. 1992).

AFFIRMED.