UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40255
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH COMEAUX,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:95-CR-119-1)
June 19, 1997
Before WISDOM, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kenneth Comeaux appeals his sentence following his guilty
plea and conviction for possession of cocaine base with intent to
distribute. We affirm.
Comeaux first argues that the court erred by increasing his
base offense level by two levels under U.S.S.G. § 2D1.1(b)(1) for
possession of a weapon during a drug-related offense. Comeaux’s
*
Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
argument that he did not know of the weapon, however, is without
merit. “Neither the sentencing guidelines nor the case law
requires that the Government prove a defendant had knowledge of a
weapon’s existence”. United States v. Flucas, 99 F.3d 177, 179
(5th Cir. 1996). “The adjustment must be made when a weapon is
found at the scene of the crime unless there is a clear
improbability that the weapon is connected to the offense”. Id.
See also United States v. Mergerson, 4 F.3d 337, 350 (5th Cir.
1993)(the government may satisfy its burden of proving possession
of a weapon by showing that the weapon was found in the same
location as the drugs or drug paraphernalia are stored or where a
part of the transaction occurred.) Under the facts of this case,
we find no clear error in the court’s application of the
enhancement under U.S.S.G. § 2D1.1(b)(1).
Comeaux next asserts that the court’s calculation of the
quantity of cocaine base involved in the offense was clearly
erroneous. He maintains that the district court erred in
considering drugs seized in December 1993 to be part of the same
course of conduct as the cocaine base seized during his October
1995 arrest. He also argues that other amounts of drugs seized
were so small that they could have supported only a conclusion
that the drugs were for personal use and not distribution.
We review the district court’s drug quantity calculations
for clear error. Mergerson, 4 F.3d at 345. In determining the
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amount of drugs attributable to a defendant, the sentencing court
is not limited to considering the amount of drugs seized or
charged in the indictment. United States v. Mitchell, 964 F.2d
454, 457-58 (5th Cir. 1992). Instead, § 1B1.3(a)(2) authorizes a
sentencing court to consider all acts an omissions that are part
of the same course of conduct or common scheme or plan as the
offense of conviction. United States v. Hoster, 988 F.2d 1374,
1378 (5th Cir. 1993). In the present case, the presentencing
report adequately demonstrates that Comeaux engaged in drug
distribution from December 1993 to October 1995 with the
regularity required to find a course of conduct. The lack of
temporal proximity is not dispositive. See U.S.S.G. § 1B1.3 cmt.
9(B)(1995). The district court did not clearly err in its drug
quantity calculations.
Finally, Comeaux asserts that the district court erred when
it failed to award him a three level decrease in his offense
level for acceptance of responsibility. He argues that his
timely guilty plea and his willingness to provide assistance to
the government require such a reduction.
The presentence report recommended denying a reduction,
stating that Comeaux had denied that the 22.39 grams of cocaine
(which he later pleaded guilty to possessing) were his. The
presentencing report also stated that Comeaux had violated his
conditions of pretrial release by testing positive for cocaine.
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The defendant bears the burden of proving that he is
entitled to a downward adjustment. United States v. Kinder, 946
F.2d 362, 367 (5th Cir. 1991). Moreover, a defendant is not
entitled to a reduction simply because he enters a guilty plea.
U.S.S.G. § 3E1.1 cmt. 3 (1995); United States v. Shipley, 963
F.2d 56, 58 (5th Cir. 1992). Attempts to minimize participation
in an offense do not demonstrate sincere contrition regarding the
full extent of criminal conduct for acceptance of responsibility.
United States v. Thomas, 12 F.3d 1350, 1372 & n.39 (5th Cir.
1994).
AFFIRMED.
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