IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41063
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO ESPINOZA-SANCHEZ, also known
as Jose Antonio Barreto,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(C-99-CR-372-1)
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May 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gustavo Espinoza-Sanchez appeals his conviction and sentence
for aiding and abetting possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and
18 U.S.C. § 2. He argues that the district court erred in
increasing his offense level by two points for possession of a
firearm during the commission of a drug offense pursuant to
U.S.S.G. § 2D1.1(b)(1).
*
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that this opinion should not be published and is not precedent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.
A defendant's sentence should be increased by two levels
whenever, in a crime involving the manufacture, import, export,
trafficking, or possession of drugs, the defendant possessed a
dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). “The adjustment
should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. at
comment. (n.3).
We review a sentencing court’s factual determinations for
clear error. Here, it is uncontested that the firearm, the
cocaine, the drug paraphernalia, and Espinoza were all present in
the apartment and the apartment’s garage. Although Espinoza did
not own or live in the apartment, he had access to the apartment,
which was used for drug trafficking. The district court found that
the firearm was accessible to Espinoza because it was “not shut up
within a hidden compartment.” Moreover, the presence of a firearm
within the apartment was foreseeable to Espinoza because firearms
are tools of the trade for drug traffickers. See United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).
The district court found that it was not “clearly improbable”
that the firearm was connected to the offense and that an
enhancement under U.S.S.G. § 2D1.1(b) was warranted. Espinoza has
not shown that this or any other factual findings of the sentencing
court were clearly erroneous.
AFFIRMED.
2