United States v. Fabela

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-10448
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS WILFREDO FABELA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CR-00012-ALL
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Jesus Wilfredo Fabela appeals his sentence following a

guilty plea conviction of conspiracy to possess with intent to

distribute 500 grams or more of cocaine. Fabela argues that the

district court erred in applying a two-level increase to the base

offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for possession

of a dangerous weapon during the offense.

*
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that this opinion should not be published and is not precedent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. 03-10448
-2-

The Government need not prove that Fabela had knowledge of

the weapon’s existence. See United States v. Flucas, 99 F.3d

177, 179 (5th Cir. 1996). A review of the record indicates that

Fabela did not meet his burden of proving that it was “clearly

improbable that the weapon was connected with the offense.” See

U.S.S.G. § 2D1.1, comment. (n.3); United States v. Marmolejo, 106

F.3d 1213, 1216 (5th Cir. 1997). Because the Government showed

that Fabela’s co-defendant knowingly possessed a weapon while

they committed the offense and because firearms are the “tools of

the trade” in drug conspiracies, the district court did not

clearly err in finding that Fabela should have foreseen his co-

defendant’s possession of a dangerous weapon. See United States

v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).

AFFIRMED.