United States v. Villarreal ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20430
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE VILLARREAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-158-2
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June 16, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Guadalupe Villarreal appeals his guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute
cocaine and for conspiracy to launder drug proceeds. He argues
that he did not waive the right to appeal both his sentence and
the denial of his motion to suppress, that the district court
abused its discretion by denying his motion to suppress, and that
the district court erred by increasing his base offense level
pursuant to U.S.S.G. § 2D1.1(b)(1).
*
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that this opinion should not be published and is not precedent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. 99-20430
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Villarreal’s written plea agreement clearly sets forth a
waiver-of-appeal provision, and the FED. R. CRIM. P. 11 hearing
indicates that Villarreal’s waiver was informed and voluntary.
See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
Villarreal’s waiver therefore bars consideration of his challenge
to the district court’s denial of his motion to suppress.
However, because Villarreal specifically reserved the right to
appeal his sentence if it resulted from a misapplication of the
sentencing guidelines, this court may review his challenge to the
sentencing court’s application of § 2D1.1(b)(1).
Section 2D1.1(b)(1) is applied if a firearm was possessed by
the defendant in relation to the offense of conviction “unless it
is clearly improbable that the weapon was connected with the
offense.” § 2D1.1, comment. (n.3). This court reviews the
district court’s decision to apply § 2D1.1(b)(1) for clear error.
United States v. Devine, 934 F.2d 1325, 1339 (5th Cir. 1991).
Villarreal failed to present any evidence at sentencing to rebut
the presentence report’s (PSR) factual findings that a search of
Villarreal’s residence revealed (1) a loaded pistol and a
quantity of currency on the shelves of the headboard of the
master bedroom’s bed; (2) two scales (one with cocaine residue on
it) found in an undisclosed area of the house; and (3) two money-
counting machines, a rolled-up dollar bill with cocaine residue
on both ends, three drug ledgers, and $1,807,587 hidden under the
insulation of the attic. Accordingly, the district court was
free to adopt the PSR’s findings without further inquiry. United
States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Based
No. 99-20430
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on the PSR’s findings, the district court did not err by
increasing Villarreal’s base offense level pursuant to
§ 2D1.1(b)(1). The district court’s judgment is AFFIRMED.
AFFIRMED.