United States v. East

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 06-20412 August 8, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
THOMAS WAYNE EAST
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-493
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Thomas Wayne East appeals the sentence imposed by the district court
following his guilty-plea conviction for possession with the intent to distribute
crack cocaine. As his sole argument on appeal, East argues that the district
court erred by enhancing his sentence based on his possession of a dangerous
weapon pursuant to U.S.S.G. § 2D1.1(b)(1). East argues that the Government
failed to satisfy its burden of proving a temporal and spatial relationship
between the weapon and the drug-trafficking activity.
*
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should not be published and is not precedent except under the limited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. 06-20412
Although East’s sentence is ultimately reviewed for reasonableness, this
court must first determine whether the district court properly calculated his
Guideline sentencing range. United States v. Tzep-Mejia, 461 F.3d 522, 526-27
(5th Cir. 2006). East raised this challenge to his sentence in the district court.
Review of his argument is thus for clear error. See United States v. Juluke, 426
F.3d 323, 328 (5th Cir. 2005).
Under § 2D1.1(b)(1), the base offense level of a defendant convicted of
drug-trafficking is increased by two levels “[i]f a dangerous weapon (including
a firearm) was possessed.” The Government has the burden of demonstrating by
a preponderance of the evidence that a temporal and spatial relation existed
between the weapon, the drug activity, and the defendant. Juluke, 426 F.3d at
328. “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(b)(1), comment. (n.3).
The Government established a spatial and temporal relationship between
the pistol and the offense. Before East exited the truck, the pistol was located
mere feet from the drugs that formed the basis of the conviction. Further, given
that East was carrying the drugs on his person, the district court could
reasonably have inferred that East was either selling the drugs from his person
or his truck, not his hotel room . Because the enhancement is plausible in light
of the record as a whole, we AFFIRM the conviction and the sentence.
2