United States v. Martinez ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 25, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-51117
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ARMANDO MARTINEZ,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. DR-03-CR-29-1-AML
    --------------------
    Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Armando Martinez appeals his sentence following a guilty-
    plea conviction for distribution of cocaine.   Martinez argues
    that the district court erred in finding that he possessed a
    firearm during the commission of the offense and, as a result, in
    imposing a two-level enhancement pursuant to U.S.S.G.
    § 2D1.1(b)(1) and denying a safety-valve adjustment pursuant to
    U.S.S.G. § 5C1.2.
    *
    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    this opinion should not be published and is not precedent except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. 03-51117
    -2-
    Section 2D1.1(b)(1) calls for a two-level increase in the
    offense level for a drug trafficking offense “[i]f a dangerous
    weapon (including a firearm) was possessed.”   U.S.S.G.
    § 2D1.1(b)(1).   Because the confidential informant saw, on at
    least one occasion, Martinez wearing a weapon during the offense
    and a weapon was found in the same location where a number of
    offenses occurred, we find that the district court did not
    clearly err in finding that Martinez possessed a firearm during
    the commission of the offense.    See United States v. Jacquinot,
    
    258 F.3d 423
    , 430 (5th Cir. 2001).
    Additionally, the district court’s finding that Martinez
    possessed a firearm for purposes of U.S.S.G. § 2D1.1(b)(1) also
    “disqualified [him] from being eligible for the ‘safety valve’
    provision of U.S.S.G. § 5C1.2.”    United States v. Flucas, 
    99 F.3d 177
    , 178-79 (5th Cir. 1996).   Because Martinez has failed to show
    that the district court erred in imposing the U.S.S.G.
    § 2D1.1(b)(1) enhancement, he consequently has also failed to
    show that the district court erred in determining that he was
    ineligible under U.S.S.G. § 5C1.2.    See id.; Vasquez, 
    161 F.3d 909
    , 912-13 (5th Cir. 1998).
    Accordingly, the district court’s judgment is AFFIRMED.
    

Document Info

Docket Number: 03-51117

Judges: Garza, Demoss, Clement

Filed Date: 10/25/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024