United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 6, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-11066
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE TEPP,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-55-1-A
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Steve Tepp appeals the district court’s application of
U.S.S.G. § 2D1.1(b)(1) to increase his offense level for possession
of a weapon during and in connection with the drug conspiracy for
which he was convicted. He argues that the adjustment was improper
since there was insufficient proof that he knew co-conspirator John
*
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opinion should not be published and is not precedent except under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.
Paul Sanchez possessed a loaded revolver. Tepp contends that his
knowledge of the weapon was not reasonably foreseeable since he was
not physically present when Sanchez possessed the weapon.
The U.S.S.G. § 2D1.1(b)(1) enhancement involves a factual
determination that is reviewed for clear error. United States v.
Chavez, 119 F.3d 342, 348 (5th Cir. 1997). A finding is not
clearly erroneous if it is plausible in light of the record read as
a whole. United States v. Edwards, 65 F.3d 430, 432 (5th Cir.
1995).
In the factual resume supporting his guilty plea, Tepp
acknowledged his involvement in a conspiracy to distribute a large
quantity of methamphetamine to a confidential informant. The
presentence report reflects that Tepp, Sanchez, Lopez and Martinez
were together at the Dreams nightclub in Dallas when Tepp asked
Lopez to drive Martinez and Sanchez to Fort Worth, where the drug
transaction was to be completed; as those three arrived at the
transaction site with the drugs, Sanchez, sitting in the back seat,
pulled out a .357 Magnum revolver. It thus appears that Sanchez
likely had that large pistol with him when he was in the presence
of Tepp, Lopez and Martinez at the Dreams nightclub in Dallas and
when, on Tepp’s direction, they began the trip to Fort Worth to
consummate the transaction. Tepp, Lopez, Martinez and Sanchez had
previously been with each other on other drug transactions. Some
three weeks after the transaction in question, Tepp was arrested
2
with a loaded 9mm pistol and .2 grams of cocaine in the car he was
driving. Given all these circumstances, and the size and several
thousand dollar street value of the drug transaction, we cannot say
that the district court clearly erred in finding that it should
have been reasonably foreseeable to Tepp that a member of the
conspiracy would be carrying a gun, despite the fact that Tepp was
not physically present when the weapon was displayed, and nothing
in the record undermines this conclusion. See United States v.
Thomas, 120 F.3d 564, 574 (5th Cir. 1997); United States v. Wilson,
105 F.3d 219, 221 (5th Cir. 1997); United States v. Dean, 59 F.3d
1479, 1490-91 & n.20 (5th Cir. 1995). Likewise, under these
circumstances, Tepp also fails to demonstrate that it was clearly
improbable that the revolver was connected to the offense, or that
the district court clearly erred in assessing the two-level
adjustment pursuant to U.S.S.G. § 2D1.1(b)(1). See U.S.S.G. §
2D1.1, comment (n.3); United States v. Edwards, 65 F.3d 430, 432
(5th Cir. 1995).
AFFIRMED.
3