* 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should not be published and is not precedent except under the limited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. 06-40491

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LUIS JAVIER ALCALDE

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:05-CR-337-2

Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit

Judges.

PER CURIAM:*

Luis Javier Alcalde appeals his 168-month sentence imposed following his

guilty plea conviction for conspiracy to possess with intent to distribute more

than 500 grams of cocaine and possession with intent to distribute more than

500 grams of cocaine or approximately one kilogram of cocaine. Alcalde argues

that the district court clearly erred in determining the quantity of drugs for

which he was held accountable. At sentencing, the district court adopted the

United States Court of Appeals

Fifth Circuit

F I L E D

October 12, 2007

Charles R. Fulbruge III

Clerk
No. 06-40491

2

findings and conclusions set forth in the presentence report(PSR). Based on the

corroborating statements of Alcalde’s co-defendants and observations of agents

from the Drug Enforcement Agency, the PSR attributed to Alcalde 1,154

kilograms of marijuana. Alcalde offered no evidence to refute these facts. See

United States v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005); United States

v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005). The district court’s factual

findings were not clearly erroneous. See United States v. Villanueva, 408 F.3d

193, 203 (5th Cir. 2005). 

Alcalde next argues that the district court clearly erred by applying a

two-level enhancement for his possession of a firearm during a drug trafficking

offense pursuant to U.S.S.G. § 2D1.1(b)(1). Based on the factual findings set

forth in the PSR, the district court determined that the enhancement was

warranted because the firearms were found inside the residence where drug

paraphernalia and cocaine were found, and that firearms were commonly used

by drug dealers to protect drugs and drug traffickers. 

Although Alcalde asserts that he kept four firearms in his residence based

on a previous assault, it is not clearly improbable that the firearms were

connected with the offense. See § 2D1.1, comment. (n.3). The presence of items

commonly used in the drug trade inside Alcalde’s residence; Alcalde’s delivery

to a co-defendant of one kilogram of cocaine in front of Alcalde’s residence; the

discovery of a firearm in close proximity to cocaine inside the residence; and the

presence of four firearms in various parts of the residence indicate that Alcalde

used the residence to prepare drugs for sale and to conduct drug transactions

and that he used firearms to protect himself, his drugs, and his profits. See

United States v. Rodriguez, 62 F.3d 723, 724-25 (5th Cir. 1995); United States v.

Eastland, 989 F.2d 760, 770 (5th Cir. 1993). The district court’s factual findings

were plausible in light of the record as a whole and thus were not clearly

erroneous. See Villanueva, 408 F.3d at 203. 
No. 06-40491

3

Alcalde contends that the district court clearly erred by applying a

two-level, managerial-role enhancement to his sentence pursuant to U.S.S.G.

§ 3B1.1(c) because the enhancement was based on incredible, unverified, double

hearsay statements by disreputable witnesses. Based on the factual findings in

the PSR, the district court concluded that the evidence was sufficient to find

that, inter alia, Alcalde recruited a co-defendant to sell cocaine and coordinated

the transportation of narcotics. Alcalde offered no evidence to refute these facts.

See Betancourt, 422 F.3d at 248. The facts set forth in the PSR are supported

by an adequate evidentiary basis, and the district court was entitled to rely on

them. See De Jesus-Batres, 410 F.3d at 164. Accordingly, the district court did

not clearly err by applying a two-level managerial-role enhancement.

Alcalde argues that the district court erred by increasing his criminal

history score by two points for his commission of the instant offense while on

probation pursuant to U.S.S.G. § 4A1.1(d). As the Government correctly points

out, any error in assessing Alcalde an additional two criminal history points

pursuant to § 4A1.1(d) was harmless. The Sentencing Guidelines provide that

a defendant with four to six criminal history points may be assigned to criminal

history category III. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Absent the

additionaltwo criminal history points assessed pursuantto § 4A1.1(d), Alcalde’s

prior convictions merited a total of four criminal history points. Even if Alcalde

had only four criminal history points, he would still be classified in criminal

history category III. See id. As such, Alcalde’s guidelines imprisonment range

would remain 168 to 210 months. See id. Any error by the district court in

calculating Alcalde’s criminal history score was harmless. See Ahmed, 324 F.3d

at 374.

For the foregoing reasons, Alcalde’s sentences are AFFIRMED.