Opinion
No. 10-10433. Summary Calendar.
March 16, 2011.
Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.
Gregory Burke Westfall, Westfall Piatt Cutrer Paschall, Fort Worth, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:09-CR-115-9.
Before WIENER, PRADO and OWEN, Circuit Judges.
In exchange for the Government's agreement to drop other charges against him, Brian Eugene Perryman pleaded guilty to two counts of aiding and abetting the investment of illicit drug profits in violation of 21 U.S.C. § 854 and 18 U.S.C. § 2 and was sentenced to a 97-month term of imprisonment. Perryman argues that the sentencing court plainly erred by imposing a dangerous weapon sentence enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).
Perryman was a member of a methamphetamine-trafficking organization run by his uncle, Thomas L. Gerry. The Presentence Report (PSR) recommended the challenged sentence enhancement based on its report that Perryman received methamphetamine and drug proceeds directly from Gerry and other members of the organization who were known to possess firearms in the course of their drug trafficking activities. Perryman did not object to the recommendation or offer any evidence or argument that it was not reasonably foreseeable to him that his coconspirators possessed and carried firearms. As the propriety of the § 2D 1.1 enhancement is a factual issue that could have been resolved if Perryman had objected in the district court, no plain error call have occurred. See United States v. Rodriguez, 602 F.3d 346, 361-62 (5th Cir. 2010); United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). Moreover, we note that the record supports the sentencing court's application of the dangerous weapon enhancement. See Zapata-Lara, 615 F.3d at 390; United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008).
Accordingly, the Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government's alternative motion for an extension of time to file a brief is DENIED.