* 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that this opinion should not be published and is not precedent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. 99-40733

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERMAN DUQUE,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. G-90-CR-424-2

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

December 10, 1999

Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

German Duque, federal prisoner # 54991-079, pleaded guilty

to one count of conspiracy to possess cocaine with intent to

distribute. He was sentenced to 292 months’ imprisonment. The

district court granted Duque leave to file an out-of-time appeal. 

Duque has filed a motion to proceed pro se on appeal, asserting

that he and his attorney were in conflict about the issues to be

raised on appeal. Such a request must be made unequivocally. 

Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)(en banc). 

Duque’s request is not unequivocal because he has not requested 
No. 99-40733

-2-

that the appellate brief filed by his attorney be stricken. 

Duque is not entitled to hybrid representation on appeal. See

Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). As a

result, Duque’s motion is DENIED.

On appeal, Duque argues that the district court erred in

failing to resentence him when it granted the out-of-time appeal

and failed to have him present for resentencing, that a

coconspirator’s possession of a concealed firearm during the drug

conspiracy was not reasonably foreseeable, and that the facts

relied upon by the district court to determine Duque was a

manager or organizer of the conspiracy did not have a sufficient

indicia of reliability.

The district court did not resentence Duque, but instead

entered a judgment granting an out-of-time appeal. Consequently,

it was not necessary for Duque to be present. See United States

v. Patterson, 42 F.3d 246, 248 (5th Cir. 1994). Nor did the

district court err in not resentencing Duque. The relief

requested in the 28 U.S.C. § 2255 motion and granted by the

district court after remand from this court was limited to an

out-of-time appeal.

The district court did not clearly err in enhancing Duque’s

sentence based upon a codefendant’s possession of a firearm

because “firearms are ‘tools of the trade’ of those engaged in

illegal drug activities.” See United States v. Aguilera-Zapata,

901 F.2d 1209, 1215 (5th Cir. 1990)(internal quotation and

citation omitted). Likewise the district court did not clearly

err in finding that Duque was a leader or organizer because he
No. 99-40733

-3-

did not carry his burden of rebutting the validity of the

presentence investigation report. United States v. Angulo, 927

F.2d 202, 205 (5th Cir. 1991). This is particularly true in

light of the fact that both Duque and his trial attorney admitted

at sentencing that Duque had lied in the past about the facts and

his involvement in the narcotics conspiracy. Consequently,

Duque’s conviction and sentence are AFFIRMED.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO PROCEED PRO SE

ON APPEAL DENIED.