United States v. Rodriguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 29, 2003
• Docket: 02-20448
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20448 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-904-4 -------------------- January 29, 2003

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Hector Rodriguez appeals from his 60-month sentence

following his guilty plea to aiding and abetting the possession

with intent to distribute 100 kilograms or more of marijuana in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He argues

that the district court clearly erred in determining that the

safety valve provision of U.S.S.G. § 5C1.2 did not apply.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20448 -2-

When Rodriguez was arrested, he was seated in the rear

passenger seat of a van with a loaded semiautomatic pistol resting

in plain view within his reach on top of a bag of marijuana in the

seat next to him. Relying on United States v. Wilson, 105 F.3d

219, 222 (5th Cir. 1997), Rodriguez contends that the safety valve

provision was applicable because he did not actually possess the

weapon and he may not be held responsible for the conduct of his

co-defendants, who were also seated in the van. Rodriguez's

reliance on Wilson is misplaced because the record shows at least

that he had joint and constructive possession of the firearm, and

we conclude that Rodriguez has not shown that the district court's

decision not to apply the safety valve was clearly erroneous. See

Wilson, 105 F.3d at 222; see also United States v. McKnight, 953

F.2d 898, 902 (5th Cir. 1992) (firearms found in plain view

supported conclusion that defendant had constructive possession);

United States v. Vasquez, 161 F.3d 909, 910, 913 (5th Cir. 1998).

AFFIRMED.