United States v. Chavez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10554
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL CHAVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CR-55-2
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Victor Manuel Chavez (“Chavez”) appeals his conviction for
possession with the intent to distribute cocaine and aiding and
abetting in violation 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 18
U.S.C. § 2. Chavez argues that the district court erred in
assessing a two-point sentencing enhancement pursuant to United
States Sentencing Guideline § 2D1.1(b)(1). Chavez primarily
argues that the two-point enhancement violates double jeopardy,
and he contends that his due process rights were violated because
*
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that this opinion should not be published and is not precedent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. 01-10554
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he was not found guilty of possessing a firearm. Chavez contends
that although he possessed a firearm on September 12, 2000, he
pleaded guilty to the transaction which occurred on July 25,
2000, and there is no evidence that he possessed a firearm on
that day.
Section 2D1.1(b)(1) indicates that a defendant’s sentence
should be increased by two levels whenever, in a crime involving
the manufacture, import, export, trafficking, or possession of
drugs, the defendant possessed a dangerous weapon. “The
adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” U.S.S.G. § 2D1.1, comment. (n.3). The decision to
apply the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) is a
factual determination, reviewed for clear error. United States
v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997).
A sentencing court need not limit its attention to the
offense of conviction but may also increase a defendant’s
sentence pursuant to § 2D1.1(b)(1) if it concludes that a firearm
was possessed in connection with unadjudicated offenses that
constitute relevant conduct, as defined by U.S.S.G. § 1B1.3. See
United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995); see
also United States v. Paulk, 917 F.2d 879, 883-84 (5th Cir.
1990). Therefore, the district court did not err in assessing
Chavez a two-point sentencing enhancement for possession of a
firearm. See United States v. Edwards, 911 F.2d 1031, 1033 (5th
No. 01-10554
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Cir. 1990); see also Witte v. United States, 515 U.S. 389, 401-03
(1995).
Chavez’ sentence and conviction are AFFIRMED.