United States v. Tepp

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2003
• Docket: 02-11066
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 6, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-11066 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVE TEPP,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CR-55-1-A

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Steve Tepp appeals the district court’s application of

U.S.S.G. § 2D1.1(b)(1) to increase his offense level for possession

of a weapon during and in connection with the drug conspiracy for

which he was convicted. He argues that the adjustment was improper

since there was insufficient proof that he knew co-conspirator John

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Paul Sanchez possessed a loaded revolver. Tepp contends that his

knowledge of the weapon was not reasonably foreseeable since he was

not physically present when Sanchez possessed the weapon.

The U.S.S.G. § 2D1.1(b)(1) enhancement involves a factual

determination that is reviewed for clear error. United States v.

Chavez, 119 F.3d 342, 348 (5th Cir. 1997). A finding is not

clearly erroneous if it is plausible in light of the record read as

a whole. United States v. Edwards, 65 F.3d 430, 432 (5th Cir.

1995).

In the factual resume supporting his guilty plea, Tepp

acknowledged his involvement in a conspiracy to distribute a large

quantity of methamphetamine to a confidential informant. The

presentence report reflects that Tepp, Sanchez, Lopez and Martinez

were together at the Dreams nightclub in Dallas when Tepp asked

Lopez to drive Martinez and Sanchez to Fort Worth, where the drug

transaction was to be completed; as those three arrived at the

transaction site with the drugs, Sanchez, sitting in the back seat,

pulled out a .357 Magnum revolver. It thus appears that Sanchez

likely had that large pistol with him when he was in the presence

of Tepp, Lopez and Martinez at the Dreams nightclub in Dallas and

when, on Tepp’s direction, they began the trip to Fort Worth to

consummate the transaction. Tepp, Lopez, Martinez and Sanchez had

previously been with each other on other drug transactions. Some

three weeks after the transaction in question, Tepp was arrested

2 with a loaded 9mm pistol and .2 grams of cocaine in the car he was

driving. Given all these circumstances, and the size and several

thousand dollar street value of the drug transaction, we cannot say

that the district court clearly erred in finding that it should

have been reasonably foreseeable to Tepp that a member of the

conspiracy would be carrying a gun, despite the fact that Tepp was

not physically present when the weapon was displayed, and nothing

in the record undermines this conclusion. See United States v.

Thomas, 120 F.3d 564, 574 (5th Cir. 1997); United States v. Wilson,

105 F.3d 219, 221 (5th Cir. 1997); United States v. Dean, 59 F.3d

1479, 1490-91 & n.20 (5th Cir. 1995). Likewise, under these

circumstances, Tepp also fails to demonstrate that it was clearly

improbable that the revolver was connected to the offense, or that

the district court clearly erred in assessing the two-level

adjustment pursuant to U.S.S.G. § 2D1.1(b)(1). See U.S.S.G. §

2D1.1, comment (n.3); United States v. Edwards, 65 F.3d 430, 432

(5th Cir. 1995).

AFFIRMED.