United States v. Loya

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-41336
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TIBURCIO CORIA LOYA
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-160-2
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Tiburcio Coria Loya appeals the sentence imposed following
his guilty-plea conviction for possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
He argues that the district court clearly erred by applying a
two-level enhancement for possession of a weapon under U.S.S.G.
§ 2D1.1(b)(1).
After United States v. Booker, 543 U.S. 220 (2005), this
court continues to review a district court’s interpretation and
application of the Sentencing Guidelines de novo and its factual
*
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this opinion should not be published and is not precedent except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. 05-41336
-2-
findings for clear error. See United States v. Villanueva, 408
F.3d 193, 202-03 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268
(2005). A defendant’s base offense level is to be increased by
two levels “[i]f a dangerous weapon (including a firearm) was
possessed.” § 2D1.1(b)(1). “The adjustment should be applied if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” § 2D1.1, comment. (n.3).
The Government must establish 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. Eastland, 989 F.2d 760, 770 (5th Cir. 1993).
The district court’s determination that it was not clearly
improbable that the weapon seized from Carmelo Hernandez’s
vehicle was connected to Loya’s offense of conviction was
plausible in light of the record read as a whole. The
presentence report (PSR) established that Loya was a passenger in
a car and that while he and Hernandez were riding in that car,
Loya had methamphetamine on his person. The PSR also stated that
Hernandez and Loya admitted that the drugs in the car belonged to
both of them and that they were trying to sell the drugs.
Hernandez testified at the sentencing hearing that he placed the
firearm in the car while Loya was sitting right next to him.
Thus, the district court could infer that Loya knew the firearm
was in the car. Further, it is not clearly improbable that the
weapon was used to protect the drug trafficking activities. See
No. 05-41336
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United States v. Westbrook, 119 F.3d 1176, 1193 (5th Cir. 1997);
United States v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997).
Therefore, the Government established a sufficient temporal and
spatial relation between the weapon, the drug trafficking
activity, and Loya, and the district court did not clearly err
when it increased his base offense level for possession of a
dangerous weapon under § 2D1.1(b)(1).
AFFIRMED.