IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10312
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP AUSTIN HATFIELD,
also known as Phil Austin Hatfield,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:95-CR-6-1-C
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December 10, 1998
Before DAVIS, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Phillip Austin Hatfield appeals from his sentence following
his guilty-plea conviction for possession with intent to
distribute methamphetamine. Hatfield argues that the district
court clearly erred in applying U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm. Section 2D1.1(b)(1) provides for a
two-point upward adjustment in base offense level in sentencing
for a drug offense if a dangerous weapon was possessed. “The
*
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that this opinion should not be published and is not precedent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. 98-10312
-2-
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 determination that a
defendant possessed a firearm pursuant to § 2D1.1(b)(1) is a
factual finding, which is reviewed for clear error. United
States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
Hatfield does not argue that there was no temporal or
spatial relationship connecting the weapon to the drug
trafficking, rather he asserts that it was completely improbable
that the weapon was, in any way, related to the drug trafficking.
Hatfield argues that he did not own the weapon, that he did not
discover its presence in the vehicle until after he began the
journey to transport the methamphetamine, that the weapon was not
loaded, and that there was no ammunition for the weapon in his
vehicle. In United States v. Mitchell, 31 F.3d 271, 277-78 (5th
Cir. 1994), we held that it was not ownership or operability that
was dispositive for purposes of the enhancement, but only
accessibility. The district court did not clearly err in
applying § 2D1.1(b)(1) in the instant case. See id.
AFFIRMED.