United States v. Laurent

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41533
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE ANTHONY LAURENT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-18-1
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Eugene Anthony Laurent appeals the sentence imposed after
his guilty-plea conviction for conspiracy to possess with intent
to distribute five grams or more of cocaine base in violation of
21 U.S.C. §§ 841(a)(1) and 846. He argues that the district
court erred by increasing his offense level by two for possession
of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1).
The district court’s decision to apply U.S.S.G.
§ 2D1.1(b)(1) is a factual determination subject to review only
*
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that this opinion should not be published and is not precedent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. 03-41533
-2-
for clear error. United States v. Devine, 934 F.2d 1325, 1339
(5th Cir. 1991). Because Laurent failed to present any rebuttal
evidence at sentencing, the district court was free to adopt the
facts in the presentence report without further inquiry. See
United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
At sentencing, Laurent did not dispute that the firearm in
question was possessed by a co-defendant. Moreover, the
presentence report contained sufficient facts for the district
court to conclude that drugs and the co-defendant’s firearm were
thrown from the vehicle occupied by Laurent and his co-defendants
on November 22, 2002. The presentence report also noted that
Laurent had $727 on his person when he was arrested, even though
he was unemployed, and that Laurent told the probation officer
that the drugs in the vehicle on November 22, 2002, were for
distribution. Accordingly, based upon the unrebutted evidence in
the presentence report, it was not clear error for the district
court to apply the adjustment for possession of a firearm as
Laurent could reasonably foresee that his co-defendant possessed
a firearm as a tool of the trade in their drug conspiracy. See
U.S.S.G. § 2D1.1, comment. (n.3); United States v. Eastland, 989
F.2d 760, 770 (5th Cir. 1993); United States v. Aguilera-Zapata,
901 F.2d 1209, 1215 (5th Cir. 1990).
AFFIRMED.