* Pursuant to 5 TH C IR

. 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should not be published and is not precedent except under the limited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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

March 6, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40393

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN VASQUEZ-SANCHEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CV-210

USDC No. 5:01-CR-1174-13

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

Ruben Vasquez-Sanchez (“Vasquez”), federal prisoner # 14860-

079, appeals the district court’s denial of his motion to vacate

pursuant to 28 U.S.C. § 2255. Vasquez filed the motion to

challenge his 156-month sentence for conspiracy to possess with

intent to distribute more than 1,000 kilograms of marijuana. This

court granted a cert ificate of appealability (“COA”) on whether

Vasquez’s defense counsel rendered ineffective assistance inNo. 04-40393

-2-

connection with the following enhancements to Vasquez’s offense

level: (1) the three-level enhancement for aggravating role in the

off ense pursuant to U.S.S.G. § 3B1.1(b) and (2) the two-level

enh ancement for possession of a dangerous weapon pursuant to

U.S.S.G. § 2D1.1(b)(1).

Vasquez asserts that his counsel was deficient in failing to

argue that there was insufficient evidence to support the

enhancement under U.S.S.G. § 3B1.1(b) for manager/supervisor.

Vasquez asserts that the record demonstrates that the only person

he instructed was a confidential inform ant (“CI”), who under

U.S.S.G. § 3B1.1(b), does not qualify as a “participant.”

A defendant’s base offense level may be increased three levels

“[i]f the defendant was a manager or supervisor (but not an

organiz er or leader) and the criminal activity involved five or

more participants or was otherwise extensive.” S ee U.S.S.G. §

3B1.1(b). To qualify for an adjustment under this section, the

defendant must have been the . . . manager[] or supervisor of one

or more other participants.” S ee U.S.S.G. § 3B1.1, comment. (n.2).

Application note two to U.S.S.G. § 3B1.1, however, recogn izes an

exception to the control requirement if a defendant “ex ercised

management responsibility over the property, assets, or activities

of a criminal organization.” S ee U.S.S.G. § 3B1.1, comment. (n.2);

see also United States v. Ronning

, 47 F.3d 710, 7 12 (5th Cir.

1995); United States v. Lopez-Urbina

,

___ F.3d

___, 2005 WL

1940118, at **13-14 (5th Cir. Aug. 15, 2005).No. 04-40393

-3-

The record reflects that Vasquez was a partner in the drugtrafficking organization. Vasquez was responsible for transporting

loads of narcotics smuggled from Mexico to the organization’s stash

houses in Laredo, Texas. He was also responsible for negotiating

and arranging the delivery of the narcotics to certain destinations

in the country. Vasquez admitted during rearraignment that he

acted as an inte rmediary in arranging and escorting the

transportation of the marijuana. Vasquez often used a CI as his

means of storing and transporting the narcotics. The record

further reflects that Va squez was transporting his own personal

loads of narcotics. These actions are all indicia of Vasquez’s

elevated role in the criminal organization. Thus, the district

court did not clearly err in applying the U.S.S.G. § 3B1.1(b)

enhancement. S ee Lopez-Urbina

, 2005 WL 1940118, at *14. As such,

it cannot be said that his counsel rendered ineffective assistance

at sentencing. S ee Strickland v. Washington

, 466 U.S. 668, 688-89

(1984).

Vasquez also argues that his defense counsel rendered

ineffective assistance in connection with the enhanc e ment for

possession of a dan gerous weapon pursuant to U.S.S.G. §

2D1.1(b)(1). Vasquez asserts that there was insufficient evidence

to show that he possessed any firearms or that it was foreseeable

to him that his co-conspirators would possess firearms.

Section § 2D1.1(b)(1) provides for a two-level increase to a

defendant’s base offense level “[i]f a dangerous weapon (includingNo. 04-40393

-4-

a firearm) was pos sessed” during the commission of a drug

trafficking offense. S ee U.S.S.G. § 2D1.1(b)(1); United States v.

Garza , 118 F.3d 278, 285 (5th Cir. 1997). One co-conspirator may

ordinarily be assessed a U.S.S.G. § 2D1.1(b)(1) increase in view of

another co-conspirator’s possession of a fire arm during the drug

conspiracy so long as the use of the weapon was reasonably

foreseeable. U nited States v. Mergerson

, 4 F.3d 337, 350 (5th Cir.

1993) (citing United St ates v. Aguilera-Zapata , 901 F.2d 1209,

1215-16 (5th Cir. 1990)).

According to the record, 1,052 pounds of marijuana and 13

f irearms, including an AK-47 assault rifle, were found in coconspirator’s, Jorg e Hernandez’s, residence which was located at

111 Allende Street. The residence was a stash house for the drugtrafficking organization. The record reflects that Vasquez had a

load of marijuana delivered to the residence for safe storage. “It

was readily foreseeable that firearms would be employed as tools of

the drug-trafficking trade.” S ee Gar za , 118 F.3d at 286. Thus,

the district court did not clearly err in applying the U.S.S.G. §

2D1.1(b)(1) enhancement. Id. As such, Vasquez’s counsel was not

ineffective at sentencing. Strickland , 466 U.S. at 688-89.

Vasquez has filed a motion to supplement his brief on appeal.

He seeks to challenge his sentence under Blakely v. Washington

, 542

U.S. 296 (2004) and United States v. Booker

, 125 S. Ct. 738 (2005).

This court cannot consider a habeas claim unless a COA has been

issued on that claim. S ee Lackey v. Johnson

, 116 F.3d 149, 151No. 04-40393

-5-

(5th Cir. 1997); United States v. Williamson

, 183 F.3d 458, 464

n.11 (5th Cir. 1999). Accordingly, Vasquez’s motion is DENIED.

The judgment of the district court denying his 28 U.S.C. § 2255 is

AFFIRMED.