United States v. Duque ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40733
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERMAN DUQUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-90-CR-424-2
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December 10, 1999
Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
German Duque, federal prisoner # 54991-079, pleaded guilty
to one count of conspiracy to possess cocaine with intent to
distribute. He was sentenced to 292 months’ imprisonment. The
district court granted Duque leave to file an out-of-time appeal.
Duque has filed a motion to proceed pro se on appeal, asserting
that he and his attorney were in conflict about the issues to be
raised on appeal. Such a request must be made unequivocally.
Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)(en banc).
Duque’s request is not unequivocal because he has not requested
*
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that this opinion should not be published and is not precedent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. 99-40733
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that the appellate brief filed by his attorney be stricken.
Duque is not entitled to hybrid representation on appeal. See
Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). As a
result, Duque’s motion is DENIED.
On appeal, Duque argues that the district court erred in
failing to resentence him when it granted the out-of-time appeal
and failed to have him present for resentencing, that a
coconspirator’s possession of a concealed firearm during the drug
conspiracy was not reasonably foreseeable, and that the facts
relied upon by the district court to determine Duque was a
manager or organizer of the conspiracy did not have a sufficient
indicia of reliability.
The district court did not resentence Duque, but instead
entered a judgment granting an out-of-time appeal. Consequently,
it was not necessary for Duque to be present. See United States
v. Patterson, 42 F.3d 246, 248 (5th Cir. 1994). Nor did the
district court err in not resentencing Duque. The relief
requested in the 28 U.S.C. § 2255 motion and granted by the
district court after remand from this court was limited to an
out-of-time appeal.
The district court did not clearly err in enhancing Duque’s
sentence based upon a codefendant’s possession of a firearm
because “firearms are ‘tools of the trade’ of those engaged in
illegal drug activities.” See United States v. Aguilera-Zapata,
901 F.2d 1209, 1215 (5th Cir. 1990)(internal quotation and
citation omitted). Likewise the district court did not clearly
err in finding that Duque was a leader or organizer because he
No. 99-40733
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did not carry his burden of rebutting the validity of the
presentence investigation report. United States v. Angulo, 927
F.2d 202, 205 (5th Cir. 1991). This is particularly true in
light of the fact that both Duque and his trial attorney admitted
at sentencing that Duque had lied in the past about the facts and
his involvement in the narcotics conspiracy. Consequently,
Duque’s conviction and sentence are AFFIRMED.
CONVICTION AND SENTENCE AFFIRMED; MOTION TO PROCEED PRO SE
ON APPEAL DENIED.