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should not be published.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