United States v. Medina

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20251 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MEDINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-256-1 -------------------- July 15, 2002

Before JOLLY, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Jose Medina appeals his sentence following a guilty-plea

conviction for various drug offenses. Medina argues that the

district court erred in assessing a four-level enhancement for

his role in the offense, and a two-level enhancement for

possession of a firearm during the commission of the offense.

The determination of a defendant’s role in the offense is a

finding of fact reviewed for clear error. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20251 -2-

Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998). In determining

whether a defendant is a leader, the court should consider these

factors: “the exercise of decision making authority, the nature

of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share

of the fruits of the crime, the degree of participation in

planning or organizing the offense, the nature and scope of the

illegal activity, and the degree of control and authority

exercised over others.” U.S.S.G. § 3B1.1, comment. (n.4).

Medina asserts that he had no control over the drugs once he

sold them to the other participants and argues that their

relationship should be characterized as “buyer-seller.” Although

not all of the above factors apply in his case, we conclude that

the district court’s finding is plausible in light of the record

as a whole, and therefore the district court did not clearly err

in imposing the enhancement. See United States v. Parker, 133

F.3d 322, 330 (5th Cir. 1998).

The enhancement for possession of a firearm under U.S.S.G.

§ 2D1.1(b)(1) also is a factual determination that this court

reviews for clear error. See United States v. Brown, 985 F.2d

766, 769 (5th Cir. 1993). “Possession of a firearm will enhance

a defendant’s sentence under U.S.S.G. § 2D1.1(b)(1) where a

temporal and spatial relationship exists between the weapon, the

drug-trafficking activity, and the defendant.” United States v.

Marmolejo, 105 F.3d 1213, 1216 (5th Cir. 1997). No. 01-20251 -3-

Medina purchased the firearm while the conspiracy was

operating. He kept the firearm upstairs in his home, but engaged

in various activities related to the conspiracy downstairs. This

court has previously upheld an enhancement where firearms were

found in the house and drugs were found buried in the backyard.

See United States v. Navarro, 169 F.3d 228, 230, 234 (5th Cir.

1999). The Government thus established the requisite temporal

and spatial relationship. Medina also argues that he purchased

the firearm to protect his home and family from robbery, not to

protect his drug activities. However, it does not matter whether

Medina intended to use the gun in his drug-trafficking offense;

the important fact is that “[it] could have been so used.”

United States v. Jacquinot, 258 F.3d 423, 431 (5th Cir. 2001)

cert. denied, 122 S. Ct. 925 (2002) (citing United States v.

Menesses, 962 F.2d 420, 429 (5th Cir.1992)). Medina has failed

to establish that it was “clearly improbable” that the firearm

was connected with the offense. The district court’s finding is

plausible in light of the record as a whole, and therefore the

district court did not clearly err. Brown, 985 F.2d at 769.

For the foregoing reasons, Medina’s sentence is AFFIRMED.