United States v. Charles ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2005
Charles R. Fulbruge III
Clerk
No. 03-40877
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERT CHARLES
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-117-1
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Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Robert Charles appeals his statutory minimum sentence of
five years for possession with intent to distribute more than 500
grams but less than five kilograms of cocaine. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(ii)(II). He argues that the district
court erred in assessing a two-level increase pursuant to
U.S.S.G. § 2D1.1(b)(1) on the basis that he possessed a weapon
during and in relation to a drug-trafficking offense. The
district court applied the § 2D1.1(b)(1) adjustment because the
*
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this opinion should not be published and is not precedent except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. 03-40877
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search of Charles’s vehicle (in which the cocaine was found)
revealed the presence of a loaded semiautomatic pistol. Charles
has not satisfied the burden of showing a clear improbability
that there was a connection between the drugs and the weapon.
See United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir.
1997); U.S.S.G. § 2D1.1, comment. (n.3). Thus, the district
court did not err in applying the two-level adjustment pursuant
to § 2D1.1(b)(1).
Charles argues for the first time on appeal that the facts
supporting the § 2D1.1(b)(1) adjustment were neither admitted by
him nor proved beyond a reasonable doubt to a jury, thus the
adjustment violated United States v. Booker, 125 S. Ct. 738
(2005). “An appellate court may not correct an error the
defendant failed to raise in the district court unless there is
(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Mares, 402 F.3d 511, 516, 520 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005)(No. 04-
9517). Charles cannot satisfy the third prong of the plain error
test as he cannot show “that the error must have affected the
outcome of the district court proceedings” or undermines
confidence in those proceedings. Id. at 521 (internal quotation
marks and citation omitted). After finding that the U.S.S.G.
§ 2D1.1(b)(1) adjustment was applicable, the court sentenced
Charles to the minimum sentence required by statute. There is
nothing in the record to indicate that the court would have
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imposed a lower sentence. In fact, the court was bound by
statute to sentence Charles to at least five years of
imprisonment. 21 U.S.C. § 841(b)(1)(B)(ii)(II). Thus, Charles
cannot demonstrate plain error in the his sentence.
AFFIRMED.