United States v. Wiley

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40806
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE EDWARD WILEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-150-1
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February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Tommie Edward Wiley pleaded guilty to possession with intent
to distribute crack cocaine on October 22, 1998. He appeals the
district court’s two level increase to his offense level for
possession of a dangerous weapon during a drug offense under U.S.
Sentencing Guidelines § 2D1.1(b)(1). According to the
presentence report, a handgun was found in the trunk of a car
from which Wiley sold cocaine in June 1998. Wiley argues that
*
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that this opinion should not be published and is not precedent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. 99-40806
-2-
there was insufficient evidence connecting him to the June 1998
offense and that the prior drug incident occurred four months
before the drug offense to which he pleaded guilty.
The district court’s decision to enhance under § 2D1.1(b)(1)
is a factual finding which we review for clear error. United
States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996). Wiley
may be held accountable under § 2D1.1(b)(1) for possessing a
firearm during a drug offense that counted as relevant conduct.
See United States v. Vaquero, 997 F.2d 78, 85 (5th Cir. 1993);
see also U.S.S.G. § 2D1.1, Appendix C, Amendment 394. The
information in the PSR was sufficient to establish that Wiley was
involved in the June 1998 drug offense and that a gun was present
where the drug trafficking occurred. Wiley did not present
evidence refuting the information in the PSR, and the district
court did not err in relying on the PSR to increase Wiley’s
offense level under U.S.S.G. § 2D1.1(b)(1). See United States v.
Angulo, 927 F.2d 202, 204-05 (5th Cir. 1991).
AFFIRMED.