Case: 11-40757 Document: 00511988365 Page: 1 Date Filed: 09/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2012
No. 11-40757
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO BERMUDEZ-BETANCOURT,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-1510-1
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Ricardo Bermudez-Betancourt appeals the 42-month sentence imposed
following his guilty plea conviction for possession with intent to distribute more
than 50 but less than 100 kilograms of marijuana. He argues that the district
court clearly erred in imposing a two-level increase in his offense level pursuant
to U.S.S.G. § 2D1.1(b)(1) for a weapon found in a vehicle driven by his
codefendant.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40757 Document: 00511988365 Page: 2 Date Filed: 09/14/2012
No. 11-40757
The district court did not clearly err in imposing a two-level increase in
Bermudez-Betancourt’s offense level under § 2D1.1(b)(1) based on the finding
that the firearm was reasonably foreseeable to him. “Ordinarily, one co-
conspirator’s use of a firearm will be foreseeable because firearms are ‘tools of
the trade’ in drug conspiracies.” United States v. Hernandez, 457 F.3d 416, 423
(5th Cir. 2006); see United States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997); cf.
United States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993)(finding sufficient
evidence to support enhancement where gun was located in co-conspirator’s
residence and was associated with a drug transaction but found insufficient
evidence to support a substantive constructive possession count based upon
finding a gun in a jointly-owned residence). The Presentence Report (PSR)
stated that Bermudez-Betancourt recruited and paid $1500 to a person, who was
an undercover officer, to transport between 50 and 100 kilograms of marijuana
from Texas to North Carolina and that he recruited and paid $500 to Jose Torres
to transport the marijuana from a storage location to the delivery site. Torres
recruited Adalberto Garza to store the marijuana, and Bermudez-Betancourt
gave Torres $500 to pay Garza. Garza was armed with a loaded handgun as he
escorted Torres during the transportation of the marijuana from the storage site
to the delivery site. Officers searched the vehicle driven by Torres and found 104
kilograms of marijuana. Officers searched the vehicle driven by Garza and
found a loaded handgun between the console and the driver’s seat; Garza
conceded that the handgun belonged to him. Bermudez-Betancourt did not
present any rebuttal evidence to show that the facts in the PSR were materially
untrue. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). In
view of the facts in the PSR, it is plausible that the possession of a weapon by
Bermudez-Betancourt’s codefendant was reasonably foreseeable to him. See
Hernandez, 457 F.3d at 423; Dixon, 132 F.3d at 202; Mergerson, 4 F.3d at 350.
The evidence does not give rise to a “definite and firm conviction that a mistake
has been committed.” See United States v. Trujillo, 502 F.3d 353, 356 (5th Cir.
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No. 11-40757
2007) (internal quotation marks and citation omitted). Therefore, the district
court did not clearly err in imposing the two-level enhancement under §
2D1.1(b)(1).
AFFIRMED.
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