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Click here for the full text of this decision FACTS:On Sept. 18, 2002, Jorge Farias drove an associate named Nadim Safdar and two other men to Lewisville to collect a drug debt. While Safdar tried to collect from the customer inside the customer’s house, Jorge and the other men, waiting outside in the car, blew the horn and yelled. When Safdar returned to the car, Lewisville police officers arrived, responding to a call that people were yelling in the street. Noticing that the car was parked the wrong way and the smell of burning marijuana, the officers asked the men to exit the car while they searched it. The officers saw a pair of brown gloves with the open ends back-to-back on the floorboard of the driver’s side where Jorge had been sitting. Picking up the gloves, they found a semi-automatic pistol hidden inside. They arrested Jorge for unlawfully carrying the gun. Then, while searching the car incident to that arrest, they found drug distribution paraphernalia and about 100 grams of methamphetamine. While Jorge was in Denton County Jail, a jail officer called the Immigration and Naturalization Service and reported Jorge’s arrest. The INS investigated and on Dec. 11, 2002, a federal grand jury in the Eastern District of Texas indicted Jorge for illegal re-entry after removal. On Jan. 29, 2003, Jorge plead guilty pursuant to a plea agreement in which he pledged to “fully, completely and honestly cooperate” with the United States in its ongoing investigation by giving interviews to the INS and testimony before the grand jury and during the trial of this or any related investigation. In return, the government agreed not to charge Jorge with any other criminal violations concerning activities committed prior to the date of this agreement which the defendant made known to the United States and which do not involve crimes of violence or Title 26 offenses. Meanwhile, Jorge’s brother Adrian Farias was also dealing drugs. Denton police officers arrested him on March 16, 2000, during a sting in which he was found with 897.67 grams of methamphetamine mixture. In addition, Dallas police officers arrested him on Nov. 18, 2003, for public intoxication, after which he was found with heroin in a pill bottle similar to that used by other family members dealing drugs. Throughout this time and through several stings from 1999 to 2003, the government pieced together an extensive drug distribution conspiracy involving defendants and various spouses, girlfriends and other relatives headed by older brother Jesus (Chuy) Farias. On Oct. 14, 2004, a federal grand jury in the Eastern District of Texas indicted Jorge, Adrian and several other co-defendants for conspiracy with intent to manufacture and distribute amphetamine, methamphetamine, heroin, cocaine and marijuana from 1999 through Oct. 14, 2004. Citing the Sept. 28, 2002, incident, it also indicted Jorge under 18 U.S.C. �924(c)(1) for using or carrying a firearm during a drug trafficking crime. Jorge moved to dismiss the conspiracy count, arguing that his earlier plea agreement precluded it. The district court denied the motion. A jury found both defendants guilty of conspiracy but acquitted Jorge of the gun charge. The court sentenced Adrian to 120 months and Jorge to 121 months after denying Jorge’s request for an adjustment for acceptance of responsibility and finding that he possessed a gun during the underlying conspiracy offense. On appeal, Jorge argued that a prior plea agreement should have precluded his prosecution. Jorge and Adrian argued insufficient evidence and improper sentencing. HOLDING:Affirmed. The court rejected Jorge’s argument that a prior plea agreement precluded his prosecution, because the plea agreement precluded prosecution only for crimes made known by Jorge and Jorge did not reveal the conspiracy to the government. And some of the individual acts proving the conspiracy relied on by the government at trial, the court stated, occurred after the plea agreement. The court found no ambiguity: Jorge’s plea agreement did not preclude his later indictment for conspiracy. In Jorge’s case, the court held that sufficient evidence supported the verdict. A jury could easily find that Jorge was more than just a lone dealer operating in the same area as other dealers, the court stated. The court also found the evidence against Adrian sufficient to support his conviction. fares no better. The court also noted that the conspiracy spanned Adrian’s eighteenth birthday. The evidence supported the government’s contention that the alleged conspirator ratified his involvement in the conspiracy after that birthday. Jorge also contended that the district court erred in enhancing his sentence under U.S. Sentencing Guideline �2D1.1(b)(1) for possessing a dangerous weapon during a drug offense, for which it cited the gun found in Jorge’s car during his Sept. 18, 2002, arrest. Jorge contends that the court erred in using the preponderance of the evidence standard instead of the beyond a reasonable doubt standard because the jury acquitted him of using or carrying the gun during that arrest. But the 5th Circuit panel found that enhancement was warranted if the weapon was found in the same location where the drugs or drug paraphernalia were stored or where part of the transaction occurred unless the defendant established that it was clearly improbable that the weapon was connected with the offense. Finally, Jorge argued that the district court erred in refusing to adjust his sentence downward for acceptance of responsibility after noting that he contested guilt by going to trial. Jorge argued that he went to trial only to preserve his claim that his prior plea agreement precluded prosecution here. But the court rejected this argument. Jorge never admitted factual guilt of the charged crime, the court stated, and Jorge did not effectively admit guilt by pleading guilty in the state case because the state charge had significantly different elements than the federal conspiracy charge. Finally, the court disputed Jorge’s contention that he went to trial to preserve his plea agreement argument, because after the court ruled on that issue, the court stated that he could have asked for a conditional plea allowing him to appeal that ruling, a request he never made. The district court’s refusal to find acceptance of responsibility was not without foundation, the court found. OPINION:Higginbotham, J.; Higginbotham, Dennis and Clement, J.J.

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