United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41202
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAY HULLETTE MARTIN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-375-ALL
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Ray Hullette Martin was convicted on his guilty plea to one
count of possession with intent to distribute in excess of 100
kilograms of marijuana. The district court sentenced Martin to
seventy months’ imprisonment and five years’ supervised release.
Martin challenges the increase applied to his offense level
pursuant to U.S.S.G § 2D1.1(b)(1) for possession of a firearm. He
asserts that he demonstrated that it was clearly improbable that
*
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that this opinion should not be published and is not precedent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. 02-41202
-2-
the firearm was connected to the drug offense. He argues that the
district court did not consider his testimony that Martin had tried
unsuccessfully to find the gun and believed that it had been stolen
and that Martin kept the gun for protection in case of an attempted
hijacking of his truck. Martin argues that the district court
applied the increase simply because the Government met its initial
burden of proof and established a temporal and spatial relationship
between the drugs, the firearm, and the defendant.
Section 2D1.1(b)(1), U.S.S.G., authorizes a two-level increase
for a drug-trafficking offense “[i]f a dangerous weapon (including
a firearm) was possessed.” The U.S.S.G. § 2D1.1(b)(1) adjustment
should be applied if the weapon was present, unless the defendant
establishes that it was clearly improbable that the weapon was
connected with the offense. United States v. Jacquinot, 258 F.3d
423, 430-31 (5th Cir. 2001), cert. denied, 534 U.S. 1116 (2002);
U.S.S.G § 2D1.1(b)(1), comment. (n.3). The application of U.S.S.G.
§ 2D1.1(b)(1) is a factual finding that is reviewed for clear
error. Jacquinot, 258 F.3d at 430.
Martin concedes that at a border patrol checkpoint, a canine
agent alerted to his truck, and agents discovered over 1,000 pounds
of marijuana in the trailer. He concedes that the agents
discovered an unloaded .380 caliber Lorica handgun, one magazine,
and six bullets in a storage compartment beneath the bed in the
sleeper area of the tractor.
No. 02-41202
-3-
The district court rejected Martin’s testimony as
inconsistent. Martin testified that he carried a gun in his truck
for protection yet did not know where the gun was stored. Martin
testified that he could not find the gun, yet agents apparently
easily located both the gun and ammunition inside the sleeper
compartment of the truck. The record shows that the district court
found, after consideration of Martin’s testimony, that the increase
applied. Martin has not shown clear error. See Jacquinot, 258
F.3d at 430-31.
Second, Martin contends that the district court lacked
jurisdiction and that his conviction is void because the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
rendered 21 U.S.C. § 841 unconstitutional. As Martin concedes, his
argument is foreclosed by this court’s precedent. United States v.
Fort, 248 F.3d 475, 482-83 (5th Cir.), cert. denied, 534 U.S. 977
(2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.
2000).
Accordingly, the judgment of the district court is AFFIRMED.