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United States v. Ventura , 172 F. App'x 585 ( 2006 )


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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                 March 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-10437
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN VENTURA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-253-4-G
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Without benefit of a written plea agreement, Juan Ventura
pleaded guilty to conspiracy to possess with intent to distribute
and to distribute cocaine base.   He challenges his sentence on
several grounds.
Ventura argues that he should have received a decrease in
his offense level for his minor role in the offense.       The record
*
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this opinion should not be published and is not precedent except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. 05-10437
-2-
contains sufficient evidence to show that Ventura’s role in the
conspiracy was more than peripheral and that he was not less
culpable than the average participant.     The district court did
not clearly err in refusing a U.S.S.G. § 3B1.2 adjustment.       See
United States v. Villanueva,
    408 F.3d 193
    , 204 (5th Cir.), cert.
denied,
    126 S. Ct. 268
     (2005).
Ventura argues that the district court erred in assessing,
pursuant to U.S.S.G. § 2D1.1(b)(1), a two level increase in his
offense level because an assault rifle was found in the apartment
that served as the conspiracy’s primary stash house and where
Ventura was arrested.   It is not clearly improbable that the
assault rifle was connected to the drug conspiracy.     See § 2D1.1,
comment. (n.3); United States v. Cooper,
    274 F.3d 230
    , 245 (5th
Cir. 2001).   The district court did not clearly err in increasing
Ventura’s offense level under § 2D1.1(b)(1).     See United States
v. Rodriguez,
    62 F.3d 723
    , 724 (5th Cir. 1995).
Ventura argues that the Government breached an implied plea
agreement by agreeing with the recommended two level increase for
possession of a dangerous weapon.    There was no written plea
agreement and the record contains no evidence of a promise that
the Government would object to an offense level increase for
possession of a dangerous weapon.   The district court’s finding
that there was no unkept promise by the Government is not clearly
erroneous.    See United States v. Corbett,
    742 F.2d 173
    , 177 (5th
No. 05-10437
-3-
Cir. 1984); United States v. Ammirato,
    670 F.2d 552
    , 555 (5th
Cir. 1982).
Ventura argues that the district court was precluded from
enhancing his sentence based on facts that had not been either
admitted by him or found beyond a reasonable doubt.    Under United
States v. Booker,
    543 U.S. 220
     (2005), however, “[t]he sentencing
judge is entitled to find by a preponderance of the evidence all
the facts relevant to the determination of a Guideline sentencing
range and all facts relevant to the determination of a
non-Guidelines sentence.”   United States v. Mares,
    402 F.3d 511
    ,
519 (5th Cir.), cert. denied,
    126 S. Ct. 43
     (2005); see also
United States v. Alonzo,
    435 F.3d 551
    , 553 (5th Cir. 2006).
Ventura argues that the district court failed to consider
other sentencing factors set forth in
    18 U.S.C. § 3553
    (a),
specifically, those related to the disparity between sentences
for cocaine base and cocaine powder.   By Congressional mandate
the Sentencing Guidelines continue to treat cocaine base offenses
differently than powder cocaine offenses.   See United States v.
Fonts,
    95 F.3d 372
    , 373-75 (5th Cir. 1996); U.S.S.G.
§ 2D1.1(c)(6).   The district court sentenced Ventura within a
properly calculated guideline range and stated that it had
considered the various factors in § 3553(a) in fashioning
Ventura’s sentence.   Ventura has not shown that the district
No. 05-10437
-4-
court failed in its obligation to consider the § 3553(a) factors
in imposing sentence, and the sentence is presumptively
reasonable.   See Alonzo,
    435 F.3d at 554
    ; United States v. Smith,
___ F.3d ___, No. 05-30313,
    2006 WL 367011
     at *2 (5th Cir. Feb.
17, 2006).
AFFIRMED.