IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40345
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERRY LEE ALLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-79-2
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August 21, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Terry Lee Allen appeals his sentence for conspiracy to
distribute, and to possess with the intent to distribute,
marijuana. Allen contends that the district court clearly erred by
enhancing his sentence pursuant to U.S.S.G. § 2D1.1(b)(1), which
provides for a two-step increase in the offense level of a drug
crime if the defendant possessed a dangerous weapon. Allen argues
that the he was unaware of the presence of the guns and that he did
not own them, have them on his person, or exercise any control over
them.
*
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that this opinion should not be published and is not precedent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. 99-40345
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The adjustment under § 2D1.1(b)(1) 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);
United States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994). To
meet its burden of proof, the Government must provide evidence that
the weapon was found in the same location where drugs or drug
paraphernalia are stored or where part of the transaction occurred.
Id. (citation omitted). Under § 2D1.1(b)(1), a sentencing court
may hold a defendant accountable for a co-defendant’s reasonably
foreseeable possession of a firearm during the commission of a
drug-trafficking offense. United States v. Thomas, 120 F.3d 564,
574 (5th Cir. 1997). Because firearms are “tools of the trade” in
drug conspiracies, one co-conspirator’s possession of a firearm
will ordinarily be foreseeable to another co-conspirator. United
States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993).
A review of the record supports the district court’s finding
that weapons were present where part of the drug transaction took
place. Therefore, the district court did not clearly err in
applying the § 2D1.1(b)(1) enhancement for firearm possession.
Allen further asserts that the district court erred in
calculating his criminal history points. Because this issue is
raised for the first time on appeal, it is reviewed for plain
error. See United States v. Alford, 142 F.3d 825, 830 (5th Cir.),
cert. denied, 525 U.S. 1003 (1998). Under U.S.S.G. § 4A1.2(a)(2)
and § 4A1.2(a)(2), comment. (n.3), the district court correctly
assigned points for offenses that were unrelated because they took
place on three separate occasions. Under § 4A1.2(c)(1), one point
No. 99-40345
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was correctly assigned for a reckless driving conviction where the
sentence imposed was a six month term of imprisonment, suspended to
one year of probation. The district court did not err, plainly or
otherwise, in calculating Allen’s criminal history points.
In light of the foregoing, the judgment of the district court
is AFFIRMED.