United States v. Martin

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41202 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAY HULLETTE MARTIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-375-ALL --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Ray Hullette Martin was convicted on his guilty plea to one

count of possession with intent to distribute in excess of 100

kilograms of marijuana. The district court sentenced Martin to

seventy months’ imprisonment and five years’ supervised release.

Martin challenges the increase applied to his offense level

pursuant to U.S.S.G § 2D1.1(b)(1) for possession of a firearm. He

asserts that he demonstrated that it was clearly improbable that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41202 -2-

the firearm was connected to the drug offense. He argues that the

district court did not consider his testimony that Martin had tried

unsuccessfully to find the gun and believed that it had been stolen

and that Martin kept the gun for protection in case of an attempted

hijacking of his truck. Martin argues that the district court

applied the increase simply because the Government met its initial

burden of proof and established a temporal and spatial relationship

between the drugs, the firearm, and the defendant.

Section 2D1.1(b)(1), U.S.S.G., authorizes a two-level increase

for a drug-trafficking offense “[i]f a dangerous weapon (including

a firearm) was possessed.” The U.S.S.G. § 2D1.1(b)(1) adjustment

should be applied if the weapon was present, unless the defendant

establishes that it was clearly improbable that the weapon was

connected with the offense. United States v. Jacquinot, 258 F.3d

423, 430-31 (5th Cir. 2001), cert. denied, 534 U.S. 1116 (2002);

U.S.S.G § 2D1.1(b)(1), comment. (n.3). The application of U.S.S.G.

§ 2D1.1(b)(1) is a factual finding that is reviewed for clear

error. Jacquinot, 258 F.3d at 430.

Martin concedes that at a border patrol checkpoint, a canine

agent alerted to his truck, and agents discovered over 1,000 pounds

of marijuana in the trailer. He concedes that the agents

discovered an unloaded .380 caliber Lorica handgun, one magazine,

and six bullets in a storage compartment beneath the bed in the

sleeper area of the tractor. No. 02-41202 -3-

The district court rejected Martin’s testimony as

inconsistent. Martin testified that he carried a gun in his truck

for protection yet did not know where the gun was stored. Martin

testified that he could not find the gun, yet agents apparently

easily located both the gun and ammunition inside the sleeper

compartment of the truck. The record shows that the district court

found, after consideration of Martin’s testimony, that the increase

applied. Martin has not shown clear error. See Jacquinot, 258

F.3d at 430-31.

Second, Martin contends that the district court lacked

jurisdiction and that his conviction is void because the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

rendered 21 U.S.C. § 841 unconstitutional. As Martin concedes, his

argument is foreclosed by this court’s precedent. United States v.

Fort, 248 F.3d 475, 482-83 (5th Cir.), cert. denied, 534 U.S. 977

(2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.

2000).

Accordingly, the judgment of the district court is AFFIRMED.