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United States v. Reyes, 05-10596 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-10596 Visitors: 23
Filed: May 10, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 10, 2006 Charles R. Fulbruge III Clerk No. 05-10596 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR REYES, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:03-CR-329-5 - Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Victor Reyes appeals from a guilty-plea convicti
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                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                      May 10, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-10596
                             Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

VICTOR REYES,

                                          Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:03-CR-329-5
                        --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Victor Reyes appeals from a guilty-plea conviction for one

count of conspiracy to distribute and possession with intent to

distribute marijuana in violation of 21 U.S.C. § 846, and one count

of   possession     with   intent   to   distribute   methamphetamine       in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii).

      Reyes argues that the district court committed clear error in

assigning a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1)




*
 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opinion should not be published and is not precedent except under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. 05-10596
                                  -2-

for possession of weapons in connection with a drug trafficking crime.

We review the district court’s factual findings for clear error.

United States v. Villanueva, 
408 F.3d 193
, 203 & n.9 (5th Cir.),

cert. denied, 
126 S. Ct. 268
(2005).

     The district court’s application of the § 2D1.1(b)(1) increase

was not clearly erroneous.     The record reflects that there was a

temporal and spatial relationship between the weapons recovered

from Reyes’s home, the drugs recovered from his attached garage,

and Reyes himself.     See United States v. Jacquinot, 
258 F.3d 423
,

431 (5th Cir. 2001); United States v. Navarro, 
169 F.3d 228
, 230,

235 (5th Cir. 1999).

     Reyes next argues that his sentence was unreasonable because

the district court failed to consider the factors outlined in

18 U.S.C. § 3553(a).    The record reflects that the district court

stated that it chose to sentence Reyes within the guidelines range

although it understood the guidelines to be advisory. The judgment

further reflects that the § 3553(a) factors were considered and

such an inference can be drawn by the district court’s sentence

within the applicable guidelines range.       See United States v.

Mares, 
402 F.3d 511
, 519 (5th Cir)., cert. denied, 
126 S. Ct. 43
(2005). Accordingly, the district court’s sentence was reasonable.

See United States v. Alonzo, 
435 F.3d 551
, 554-55 (5th Cir. 2006).

     Finally, Reyes argues that the district court’s sentence

violated the Fifth and Sixth Amendments due to the court’s failure

to consider the guidelines advisory in practice.    He also contends
                             No. 05-10596
                                  -3-

that the court failed to afford him an opportunity to offer

evidence on the weapons increase before rendering its ruling on his

objection. Because Reyes raises these arguments for the first time

on appeal, they are reviewed for plain error only.           See 
Mares, 402 F.3d at 520
.

      The inference exists from the court’s statements at sentencing

and the written judgment that the sentence, which was           within the

guidelines range, was reasonable and that the court considered the

§ 3553(a) factors.       See 
Mares, 402 F.3d at 519
.            The record

reflects that the district court considered Reyes’s objections to

the   presentence   report   concerning     the    weapons    increase   at

sentencing.    Reyes fails to identify what new evidence he intended

to introduce relative to the increase.            Accordingly, he cannot

establish plain error.    See 
Mares, 402 F.3d at 520
.

      AFFIRMED.

Source:  CourtListener

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