United States v. Martinez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-50339
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE SARDANETA MARTINEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-151-3
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Guadalupe Sardaneta Martinez, Jr., (Martinez) 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 to which he pleaded
guilty. He argues that the increase was improper since the
Government failed to demonstrate that the firearms possession
conduct recited in the presentence report (PSR) was connected to
any illegal drug activity. In response, the Government maintains
*
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that this opinion should not be published and is not precedent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. 03-50339
-2-
that the increase was proper since Martinez possessed a dangerous
weapon during the time-frame of the conspiracy for which he was
charged.
Review of the record in this case reveals a sufficient link
to support the U.S.S.G. § 2D1.1(b)(1) increase. Specifically,
the record demonstrates that Martinez and his co-conspirators
conducted at least a portion of their drug-trafficking activities
out of the Land Sharks Audio business -- the location where a
confidential informant observed a handgun fall to the ground from
Martinez’s pants. Although Martinez contends that the PSR failed
to identify a specific date for this event, he does not dispute
the probation officer’s statement that Land Sharks Audio opened
for business in 1999, thereby placing Martinez’s gun possession
conduct within the time-frame of the conspiracy.
Because Martinez was observed with a gun where at least a
portion of the drug-trafficking activities took place, it was not
clearly improbable that the weapons possession conduct was
connected to the drug conspiracy offense. See U.S.S.G. § 2D1.1,
comment. (n.3); see also United States v. Eastland, 989 F.2d
760, 770 (5th Cir. 1993). Accordingly, the district court did
not clearly err in assessing the U.S.S.G. § 2D1.1(b)(1) increase.
See United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir.
1996).
AFFIRMED.