United States v. Martinez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 30, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-11085 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HIRAM RODRIGUEZ MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CR-55-2-A --------------------

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Hiram Rodriguez Martinez (“Martinez”) appeals his sentence

following his guilty plea conviction of conspiracy to possess

with intent to distribute a substance containing a detectable

amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B). Martinez argues that the district court erred in

applying a two-level increase to the base offense level pursuant

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-11085 -2-

to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon

during the offense.

Because the Government showed that Martinez’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 Martinez 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). Additionally, a review of the

record indicates that Martinez 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).

AFFIRMED.