IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20251
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-256-1
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July 15, 2002
Before JOLLY, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Jose Medina appeals his sentence following a guilty-plea
conviction for various drug offenses. Medina argues that the
district court erred in assessing a four-level enhancement for
his role in the offense, and a two-level enhancement for
possession of a firearm during the commission of the offense.
The determination of a defendant’s role in the offense is a
finding of fact reviewed for clear error. See United States v.
*
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that this opinion should not be published and is not precedent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. 01-20251
-2-
Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998). In determining
whether a defendant is a leader, the court should consider these
factors: “the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share
of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
exercised over others.” U.S.S.G. § 3B1.1, comment. (n.4).
Medina asserts that he had no control over the drugs once he
sold them to the other participants and argues that their
relationship should be characterized as “buyer-seller.” Although
not all of the above factors apply in his case, we conclude that
the district court’s finding is plausible in light of the record
as a whole, and therefore the district court did not clearly err
in imposing the enhancement. See United States v. Parker, 133
F.3d 322, 330 (5th Cir. 1998).
The enhancement for possession of a firearm under U.S.S.G.
§ 2D1.1(b)(1) also is a factual determination that this court
reviews for clear error. See United States v. Brown, 985 F.2d
766, 769 (5th Cir. 1993). “Possession of a firearm will enhance
a defendant’s sentence under U.S.S.G. § 2D1.1(b)(1) where a
temporal and spatial relationship exists between the weapon, the
drug-trafficking activity, and the defendant.” United States v.
Marmolejo, 105 F.3d 1213, 1216 (5th Cir. 1997).
No. 01-20251
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Medina purchased the firearm while the conspiracy was
operating. He kept the firearm upstairs in his home, but engaged
in various activities related to the conspiracy downstairs. This
court has previously upheld an enhancement where firearms were
found in the house and drugs were found buried in the backyard.
See United States v. Navarro, 169 F.3d 228, 230, 234 (5th Cir.
1999). The Government thus established the requisite temporal
and spatial relationship. Medina also argues that he purchased
the firearm to protect his home and family from robbery, not to
protect his drug activities. However, it does not matter whether
Medina intended to use the gun in his drug-trafficking offense;
the important fact is that “[it] could have been so used.”
United States v. Jacquinot, 258 F.3d 423, 431 (5th Cir. 2001)
cert. denied, 122 S. Ct. 925 (2002) (citing United States v.
Menesses, 962 F.2d 420, 429 (5th Cir.1992)). Medina has failed
to establish that it was “clearly improbable” that the firearm
was connected with the offense. The district court’s finding is
plausible in light of the record as a whole, and therefore the
district court did not clearly err. Brown, 985 F.2d at 769.
For the foregoing reasons, Medina’s sentence is AFFIRMED.