United States v. Sanchez-Vasquez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41659
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MANUEL SANCHEZ-VASQUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-356-1
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Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Jesus Manuel Sanchez-Vasquez appeals his sentence following
a guilty-plea conviction for possession with intent to distribute
marijuana. Sanchez argues that the district court erred in
increasing his base offense level by two levels pursuant to
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm and in
determining that he was ineligible under the “safety-valve”
provision in U.S.S.G. § 5C1.2.

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No. 02-41659
-2-
Section 2D1.1(b)(1) calls for a two-level increase in the
offense level for a drug trafficking offense “[i]f a dangerous
weapon (including a firearm) was possessed.” “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 Government meets its
burden of proof under U.S.S.G. § 2D1.1 by “provid[ing] evidence
that the weapon was found in the same location where drugs or
drug paraphernalia are stored or where part of the transaction
occurred.” United States v. Jacquinot, 258 F.3d 423, 430 (5th
Cir. 2001), cert. denied, 534 U.S. 1116 (2002)(internal quotation
marks and citation omitted).
The Government met its burden here by providing evidence, as
set forth in the Presentence Report, that a loaded .9mm Beretta
semi-automatic pistol was found on top of a cabinet approximately
two or three feet away from the marijuana in a storage room for
which Sanchez had the key. Although Sanchez contends he had no
knowledge of the firearm, “[n]either the sentencing guidelines
nor the case law requires that the Government prove a defendant
had knowledge of a weapon’s existence.” United States v. Flucas,
99 F.3d 177, 179 (5th Cir. 1996). Furthermore, the district
court implicitly rejected Sanchez’s testimony by concluding that
he constructively possessed the firearm. See id. We find that
the district court did not clearly err in making such findings
and credibility determinations.

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No. 02-41659
-3-
** Section 5C1.2(2) is found in the 2001 edition of the
Guidelines, which was used in Sanchez’s case, at U.S.S.G.
§ 5C1.2(a)(2).
Contrary to Sanchez’s contentions, “despite any difference
in semantics between § 2D1.1(b)(1) and § 5C1.2(2),** the two
provisions should be analyzed analogously.” United States v.
Vasquez, 161 F.3d 909, 910, 913 (5th Cir. 1998). The district
court’s finding that Sanchez possessed a firearm for purposes of
U.S.S.G. § 2D1.1(b)(1) also “disqualified [him] from being
eligible for the ‘safety valve’ provision of U.S.S.G. § 5C1.2.”
Flucas, 99 F.3d at 178-79. Because Sanchez has failed to show
that the district court erred in imposing the U.S.S.G.
§ 2D1.1(b)(1) enhancement, he consequently has also failed to
show that the district court erred in determining that he was
ineligible under U.S.S.G. § 5C1.2. See id.; Vasquez, 161 F.3d at
912-13.
Sanchez’s reliance on United States v. Wilson, 105 F.3d 219
(5th Cir. 1997), is misplaced because, unlike Wilson, there was
simply no evidence that another individual carried the firearm at
issue. Under the circumstances of this case, Vasquez instructs
that the same analysis be used for interpreting U.S.S.G.
§ 5C1.2(a)(2) and U.S.S.G. § 2D1.1(b)(1). See 161 F.3d at 911-12
& n.1.
Accordingly, the district court’s judgment is AFFIRMED.

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