United States v. Martinez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2008
No. 06-51313
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ROBLES MARTINEZ
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-48-ALL
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Robles Martinez appeals the 144-month sentence imposed after he
pleaded guilty to one count of conspiracy to possess with intent to distribute
methamphetamine, three counts of possession with intent to distribute
methamphetamine, and one count of possession of a firearm or ammunition by
a felon. He contends that his sentence was wrongly increased for his possession
of a firearm found in a vehicle parked at his home. At his rearraignment,
*
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should not be published and is not precedent except under the limited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. 06-51313
Martinez refused to admit possession of a firearm, and his guilty plea was based
only on his admitted possession of ammunition found in his home.
Martinez’s refusal to admit possession of the firearm does not determine
whether the offense level increase was proper. Weapon possession can be used
as an enhancement even if the possession “does not warrant prosecution as an
independent firearm offense.” United States v. Villarreal, 920 F.2d 1218, 1221
(5th Cir.1991). Further, the sentencing court was entitled to find by a
preponderance of evidence all the facts necessary to determine the sentence. See
United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006).
The Government has shown the presence of a firearm, and Martinez has
not shown that it is clearly improbable that the gun was connected to the
offense. See U.S.S.G. § 2D1.1, comment. (n.3); United States v. Flucas, 99 F.3d
177, 179 (5th Cir. 1996). In light of the admitted factual basis supporting the
plea, the unrebutted presentence report, and reasonable inferences therefrom,
the district court’s factual finding that Martinez possessed a weapon in
connection with his drug-trafficking crimes is plausible and thus not clearly
erroneous. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); see
also Villarreal, 920 F.2d at 1221-22.
The district court’s judgment is AFFIRMED.
2