United States v. Miles

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-40182
Summary Calendar
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD WAYNE MILES,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:98-CR-79-1)
_________________________________________________________________
November 1, 1999
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Donald Wayne Miles appeals his 72-month sentence on his
guilty-plea conviction for conspiracy to distribute, and to possess
with intent to distribute, marijuana. He contends that the
district court erred by enhancing his sentence pursuant to U.S.S.G.
§ 2D1.1(b)(1) (two level increase in offense level of a drug crime
if defendant possessed a dangerous weapon). In this regard, he
asserts that the three weapons in question were not connected with
his drug trafficking offense, but were for the protection of his
radiator shop in case of robbery (due to previous felony
*
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this opinion should not be published and is not precedent except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.
convictions, Miles was prohibited from possessing firearms); and
that, in the light of Bailey v. United States, 516 U.S. 137, 143
(1995),§ 2D1.1(b)(1) should be applied only where the weapon was
actively employed or was an operative factor in the predicate
offense.
Sentencing Guidelines applications are reviewed de novo.
United States v. Reyna-Espinosa, 117 F.3d 826, 828 (5th Cir. 1997).
The district court’s assessment of a two level enhancement for
possession of a firearm is a factual determination reviewed only
for clear error. United States v. Navarro, 169 F.3d 228, 234 (5th
Cir.), cert. denied, sub nom. Edmonson v. United States, 1999 WL
386733 (U.S. 4 Oct. 1999) (No. 98-9659).
The § 2D1.1(b)(1) adjustment “should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected to the offense”. § 2D1.1, application n.3; United States
v. Mitchell, 31 F.3d 271, 277 (5th Cir.), cert. denied, 513 U.S.
977 (1994). “The government has the burden of proof under § 2D1.1
of showing by a preponderance of the evidence that a temporal and
spatial relation existed between the weapon, the drug trafficking
activity, and the defendant.” United States v. Vasquez, 161 F.3d
909, 912 (5th Cir. 1998) (internal quotations and citation
omitted). “Applying this standard, the government must provide
evidence that the weapon was found in the same location where drugs
or drug paraphernalia are stored or where part of the transaction
occurred.” Id. at 912 (internal quotation and citation omitted).
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Miles’ assertion that, in the light of Bailey, we should
heighten the above described standards for satisfying § 2D1.1(b)(1)
is raised for the first time on appeal; we review only for plain
error. There is none. See United States v. Griffith, 118 F.3d
318, 327 (5th Cir. 1997).
Furthermore, there is no merit to his claim that the
Government failed to prove a connection between his possession of
a firearm and his drug trafficking offense. A presentence report
(PSR) is generally considered reliable enough to be considered by
the trial court as evidence in making the factual determinations
required by the Guidelines. E.g., United States v. West, 58 F.3d
133, 138 (5th Cir. 1995). The district court adopted the PSR’s
findings that: Miles used his business’ garage to wrap, package,
and load into a vehicle approximately 200 pounds of marijuana; the
police recovered a shotgun, along with 30 pounds of marijuana and
various drug-trafficking paraphernalia, from the garage of Miles’
business; and, the police recovered a pistol and second shotgun
from the office area that adjoins the garage.
These uncontested facts establish that, at the very least, the
shotgun found in the garage area of Miles’ business was connected
with his drug trafficking offense, as it was found in the same
location where part of the drug transaction occurred and where the
drugs and drug paraphernalia were stored. See Navarro, 169 F.3d at
235.
AFFIRMED
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