United States v. Rodriguez

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-60597
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

versus

JOSE RAMIRO RODRIGUEZ a/k/a
Ramiro Jose Rodriquez,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
( August 22, 1995 )

Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:*

Jose Ramiro Rodriguez appeals the district court's two-point

sentencing adjustment under U.S.S.G. §2D1.1(b)(1) for possession of

a weapon during a drug transaction; its denial of a three-point

downward adjustment under U.S.S.G. §3E1.1 for acceptance of

responsibility; its determination of the quantity of drugs involved

in the offense; and its denial of his post-sentencing motion to

withdraw his guilty plea agreement. Finding no error, we affirm.

*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
 Background

On January 31, 1994, undercover police investigators Braulio

Garza and Raul Tanguma met with Rene Acevedo and a confidential

informant to negotiate the sale of 500 grams of cocaine for an

agreed price.1 Acevedo informed the investigators that a friend,

Rodriguez, wanted to purchase the cocaine, but that he insisted

that the transaction be consummated at his home.

Upon arriving at the home the officers informed Acevedo that

they needed one hour to produce the cocaine. They left and

returned with a package of cocaine which they showed to Acevedo

just outside the home. Leaving the package in the car with

Tanguma, Garza and the CI followed Acevedo into Rodriguez's home

where Garza demanded that he be shown the purchase money.

Rodriguez led Garza to his bedroom where he retrieved a shaving kit

containing a sandwich bag full of one hundred dollar bills. Garza

then asked the CI to tell Tanguma to bring in the cocaine, the

prearranged arrest signal for a nearby surveillance team. Acevedo

and Rodriguez were arrested. Rodriguez had two grams of cocaine

and $3500 on his person. A .25 caliber handgun, 50 rounds of

ammunition, and cash totaling $8337 were found in Rodriguez's

bedroom, the room to which Rodriguez retreated when the arresting

agents entered the house.

Rodriguez pleaded not guilty and proceeded to trial. After

selection of the jury, he agreed to plead guilty to conspiracy to

1
The record is unclear whether the price was to be $5000 or
$8000.
2
possess with intent to distribute cocaine2 and to being a felon in

possession of a weapon.3 In return, the government agreed to

dismiss three other charges, recommend a downward adjustment for

acceptance of responsibility under U.S.S.G. §3E1.1, stipulate that

the amount of cocaine involved was 200 grams, and not seek an

upward sentencing departure.

At sentencing the trial judge denied a reduction for

acceptance of responsibility, added two points for possession of a

gun during the charged offense, and found that the relevant

quantity of drugs was 500 grams. The guideline application

resulted in a sentencing range of 97 to 121 months and the district

court imposed a sentence of 121 months imprisonment, followed by

three years of supervised release. Rodriguez then moved to

withdraw his plea. The district court denied the motion and

Rodriguez timely appealed.

Analysis

Rodriguez first challenges the two-level increase in his

offense level for possession of a firearm during a drug offense

under U.S.S.G. §2D1.1(b)(1). Noting that the pistol was never

displayed during the transaction and was unloaded when discovered

by the arresting officers, Rodriguez contends that he never

possessed the gun and that it was not connected to the transaction

within the meaning of §2D1.1.

The district court's decision to apply §2D1.1(b)(1) is

essentially a factual determination reviewable under the clearly

2
21 U.S.C. §§841(a)(1), (b)(1)(c), 846 (1988).
3
18 U.S.C. §§922(g)(1), 924(a)(2) (1988 & Supp. V 1993).

3
erroneous standard. If the weapon was present at the scene of the

transaction, the adjustment should be applied unless it is clearly

improbable that the weapon was connected to the offense.4 The. 25

caliber pistol was readily accessible to Rodriguez during the drug

transaction, having been placed on top of an armoire in his

bedroom, within a few feet of where Rodriguez revealed the "buy"

money to Garza and where he retreated when the arresting officers

arrived. That the weapon was not brandished and was unloaded does

not negate a finding of possession under §2D1.1(b)(1).5 The

dispositive factor is the accessibility of the weapon to the

defendant.6 The district court did not clearly err in finding

Rodriguez to be in possession of the firearm during the drug

transaction.

Rodriguez next contends that the court erred in denying him a

downward adjustment in his offense level for acceptance of

responsibility. We are not persuaded. The record fully supports

this factual finding, based on the conduct of Rodriguez both before

and after his entry of the guilty plea and up to the time of

sentencing.7

4
U.S.S.G. §2D1.1 n. 3.
5
United States v. Mitchell, 31 F.3d 271 (5th Cir.)(citing
United States v. Paulk, 917 F.2d 879 (5th Cir. 1990)), cert.
denied, 115 S.Ct. 455 (1994). The record reflects that loose
ammunition for the pistol was laying nearby and that such
ammunition could have been loaded into the pistol and fired, albeit
only one round at a time.

6
United States v. Menesses, 962 F.2d 420 (5th Cir. 1992).
7
United States v. Diaz, 39 F.3d 568 (5th Cir. 1994)(concluding
that waiting until the eve of trial to plead guilty and denying
full extent of charged conspiracy supported trial court's decision

4
 Rodriguez also challenges the district court's conclusion

that, for sentencing, the relevant conduct involved 500 grams of

cocaine. Although the government and Rodriguez stipulated in the

plea agreement that the quantity was 200 grams, the district court

is not bound by such stipulations and "may with the aid of the

presentence report, determine the facts relevant to sentencing."8

The record reflects that the undercover investigators

negotiated for the sale of 500 grams of cocaine for either $5,000

or $8,000. The cash "flashed" to the investigators by Rodriguez

and later seized by the arresting officers totaled $11,837,

obviously sufficient to cover either price. The supervising

officer of the investigation testified that the undercover

investigators negotiated for the sale of 500 grams of cocaine.9

The district court did not clearly err in finding the amount of

cocaine involved in the offense was 500 grams.

Finally, Rodriguez asserts that the district court erred in

denying his post-sentence motion to withdraw his plea, a motion

obviously based on the fact that he did not receive the sentence

which he had hoped to receive. The court's refusal to follow the

plea agreement neither denied Rodriguez due process nor breached

to deny downward adjustment under §3E1.1(a) and (b)).
8
U.S.S.G. §6B1.4(d) (1994). See United States v. Garcia, 902
F.2d 324 (5th Cir. 1990).
9
At sentencing, the district court may consider hearsay
testimony which it finds reliable. See United States v.
Billingsley, 978 F.2d 861 (5th Cir. 1992), cert. denied, 113 S.Ct.
1661 (1993).

5
the plea agreement.10 An attitudinal change after learning the

consequences of one's plea is not a sufficient basis to justify the

withdrawal of the plea after sentencing.11

AFFIRMED.

10
United States v. Cates, 952 F.2d 149 (5th Cir.), cert.
denied, 504 U.S. 962 (1992).
11
United States v. Hoskins, 910 F.2d 309 (5th Cir. 1990)(noting
that defendant who seeks to withdraw plea after sentencing must
show a fundamental defect resulting in a miscarriage of justice).

6