* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30288

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARTIN DUPLAN

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CR-82-1

Before DAVIS, GARZA, and PRADO, Circuit Judges. 

PER CURIAM:*

Martin Duplan pleaded guilty to one count of distributing and possessing

with intentto distribute more than 500 grams of cocaine in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B), and he was convicted by a jury of one count of possessing

a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A). The district court sentenced Duplan to 63 months of

imprisonment for the drug-trafficking charge and to a consecutive term of 60

months of imprisonment for the firearm charge. The court also ordered that

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-30288

2

Duplan forfeit the two firearms that he was convicted of possessing in

furtherance of a drug trafficking crime and imposed two, concurrent four-year

terms of supervised release.

Duplan contends that the evidence at the trial on the firearm charge was

insufficient to sustain the jury’s verdict of guilt under § 924(c)(1)(A). Because

Duplan moved for a judgment of acquittal under FED. R. CRIM. P. 29 as to the

firearm charge, review is de novo. See United States v. Ferguson, 211 F.3d 878,

882 (5th Cir. 2000). The trial evidence showed Duplan possessed two firearms.

A Glock .45 caliber handgun with a laser sight and with a single bullet loaded

in the chamber was inside Duplan’s pickup truck when he retrieved nearly 500

net grams of cocaine from the truck to sell to the DEA’s confidential source. In

addition, a Smith & Wessson 9mm pistol was lying in the nightstand in Duplan’s

bedroom, about eight feet from 227.6 net grams of cocaine, a digital scale, and

sandwich bags Duplan had stored in the bedroom closet. Although Duplan’s

father testified that the Smith & Wesson was a family heirloom and his fiancée

testified that Duplan purchased the Glock .45 for personal protection while

working late night shifts as a tugboat captain, there was sufficient evidence for

the jury to reasonably infer that Duplan knowingly possessed a firearm in

furtherance of a drug-trafficking crime. See United States v. Ceballos-Torres,

218 F.3d 409, 414-15 (5th Cir.), amended in other part, 226 F.3d 651 (5th Cir.

2000); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Duplan contends thatthe district court clearly erred in denying him a twolevel reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility due to

Duplan’s decision to proceed to trial on the firearm charge. The Government did

not oppose the application ofthe reduction in the district court based on the facts

but expressed doubt that Duplan was eligible for the reduction. The district

courtinterpreted § 3E1.1, comment. (n.2)to mean that Duplan was ineligible for

the reduction, a ruling which we review de novo. United States v. Caldwell, 448

F.3d 287, 290 (5th Cir. 2006). 
No. 07-30288

3

We rejected a similar argument in United States v. Brace, 145 F.3d 247,

265 (5th Cir. 1998) (en banc). There, the defendant conceded his commission of

the relevant conduct (actus reus) but proceeded to trial on an entrapment

defense, contesting whether he had the requisite mens rea. Id. at 265. We held

thatthe defendantfailed to accept responsibility for his crime under § 3E1.1 and

affirmed the district court’s denial of the acceptance-of-responsibility reduction.

Id. Like the defendant in Brace, Duplan was ineligible for the reduction under

§ 3E1.1 because he proceeded to trial on the firearms charge to contest his mens

rea, denying that he possessed the firearms “in furtherance of” his drugtrafficking crime. Thus, the district court properly applied our holding in Brace,

and we affirm Duplan’s sentence.

Duplan also claims that his attorney rendered ineffective assistance in

failing to advise him not to persist in his not guilty plea with respect to the

firearm charge. Generally, this court declines to review claims of ineffective

assistance of counsel on direct appeal. United States v. Miller, 406 F.3d 323,

335-36 (5th Cir. 2005); see also Massaro v. United States, 538 U.S. 500, 503-04

(2003) (stating that a 28 U.S.C. § 2255 motion is the preferred method for raising

such a claim). Accordingly, this court has undertaken to resolve claims of

inadequate representation on direct appeal only in rare cases where the record

allowed the court to evaluate fairly the merits of the claim. United States v.

Higdon, 832 F.2d 312, 314 (5th Cir. 1987). Duplan’s is not one of those rare

cases.

AFFIRMED.