United States v. Fabela

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10448
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS WILFREDO FABELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CR-00012-ALL
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Wilfredo Fabela appeals his sentence following a
guilty plea conviction of conspiracy to possess with intent to
distribute 500 grams or more of cocaine. Fabela argues that the
district court erred in applying a two-level increase to the base
offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for possession
of a dangerous weapon during the offense.
*
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that this opinion should not be published and is not precedent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. 03-10448
-2-
The Government need not prove that Fabela had knowledge of
the weapon’s existence. See United States v. Flucas, 99 F.3d
177, 179 (5th Cir. 1996). A review of the record indicates that
Fabela did not meet his burden of proving that it was “clearly
improbable that the weapon was connected with the offense.” See
U.S.S.G. § 2D1.1, comment. (n.3); United States v. Marmolejo, 106
F.3d 1213, 1216 (5th Cir. 1997). Because the Government showed
that Fabela’s co-defendant knowingly possessed a weapon while
they committed the offense and because firearms are the “tools of
the trade” in drug conspiracies, the district court did not
clearly err in finding that Fabela should have foreseen his co-
defendant’s possession of a dangerous weapon. See United States
v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).
AFFIRMED.