United States v. Alcalde , 250 F. App'x 627 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-40491 FILED
Summary Calendar October 12, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS JAVIER ALCALDE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-337-2
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Luis Javier Alcalde appeals his 168-month sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute more
than 500 grams of cocaine and possession with intent to distribute more than
500 grams of cocaine or approximately one kilogram of cocaine. Alcalde argues
that the district court clearly erred in determining the quantity of drugs for
which he was held accountable. At sentencing, the district court adopted 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should not be published and is not precedent except under the limited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. 06-40491
findings and conclusions set forth in the presentence report (PSR). Based on the
corroborating statements of Alcalde’s co-defendants and observations of agents
from the Drug Enforcement Agency, the PSR attributed to Alcalde 1,154
kilograms of marijuana. Alcalde offered no evidence to refute these facts. See
United States v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005); United States
v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005). The district court’s factual
findings were not clearly erroneous. See United States v. Villanueva, 408 F.3d
193, 203 (5th Cir. 2005).
Alcalde next argues that the district court clearly erred by applying a
two-level enhancement for his possession of a firearm during a drug trafficking
offense pursuant to U.S.S.G. § 2D1.1(b)(1). Based on the factual findings set
forth in the PSR, the district court determined that the enhancement was
warranted because the firearms were found inside the residence where drug
paraphernalia and cocaine were found, and that firearms were commonly used
by drug dealers to protect drugs and drug traffickers.
Although Alcalde asserts that he kept four firearms in his residence based
on a previous assault, it is not clearly improbable that the firearms were
connected with the offense. See § 2D1.1, comment. (n.3). The presence of items
commonly used in the drug trade inside Alcalde’s residence; Alcalde’s delivery
to a co-defendant of one kilogram of cocaine in front of Alcalde’s residence; the
discovery of a firearm in close proximity to cocaine inside the residence; and the
presence of four firearms in various parts of the residence indicate that Alcalde
used the residence to prepare drugs for sale and to conduct drug transactions
and that he used firearms to protect himself, his drugs, and his profits. See
United States v. Rodriguez, 62 F.3d 723, 724-25 (5th Cir. 1995); United States v.
Eastland, 989 F.2d 760, 770 (5th Cir. 1993). The district court’s factual findings
were plausible in light of the record as a whole and thus were not clearly
erroneous. See Villanueva, 408 F.3d at 203.
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No. 06-40491
Alcalde contends that the district court clearly erred by applying a
two-level, managerial-role enhancement to his sentence pursuant to U.S.S.G.
§ 3B1.1(c) because the enhancement was based on incredible, unverified, double
hearsay statements by disreputable witnesses. Based on the factual findings in
the PSR, the district court concluded that the evidence was sufficient to find
that, inter alia, Alcalde recruited a co-defendant to sell cocaine and coordinated
the transportation of narcotics. Alcalde offered no evidence to refute these facts.
See Betancourt, 422 F.3d at 248. The facts set forth in the PSR are supported
by an adequate evidentiary basis, and the district court was entitled to rely on
them. See De Jesus-Batres, 410 F.3d at 164. Accordingly, the district court did
not clearly err by applying a two-level managerial-role enhancement.
Alcalde argues that the district court erred by increasing his criminal
history score by two points for his commission of the instant offense while on
probation pursuant to U.S.S.G. § 4A1.1(d). As the Government correctly points
out, any error in assessing Alcalde an additional two criminal history points
pursuant to § 4A1.1(d) was harmless. The Sentencing Guidelines provide that
a defendant with four to six criminal history points may be assigned to criminal
history category III. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Absent the
additional two criminal history points assessed pursuant to § 4A1.1(d), Alcalde’s
prior convictions merited a total of four criminal history points. Even if Alcalde
had only four criminal history points, he would still be classified in criminal
history category III. See id. As such, Alcalde’s guidelines imprisonment range
would remain 168 to 210 months. See id. Any error by the district court in
calculating Alcalde’s criminal history score was harmless. See Ahmed, 324 F.3d
at 374.
For the foregoing reasons, Alcalde’s sentences are AFFIRMED.
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