United States v. Douglas Atherton

Sixth Circuit

United States v. Douglas Atherton

568 F. App'x 440

CourtCourt of Appeals for the Sixth Circuit

DecidedJune 12, 2014

Docket13-5276

StatusUnpublished

This text of 568 F. App'x 440 (United States v. Douglas Atherton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Douglas Atherton, 568 F. App'x 440 (6th Cir. 2014).

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Opinion

PER CURIAM.

Douglas Atherton, a federal prisoner, appeals through counsel the 71-month sentence imposed following his guilty plea to charges of possession of a firearm while under a domestic violence order and possession of a firearm by a convicted felon.

A relative of Atherton’s called the police to report that Atherton had been making threats against his estranged wife and that he had a gun. The police found Atherton passed out in a parked vehicle. He had a pistol in his back pocket. Atherton was convicted in state court of carrying a concealed deadly weapon and first-degree stalking. He was sentenced to three years of imprisonment. After Atherton’s guilty plea to the above federal charges, a pre-sentence report was prepared that calculated a guidelines sentencing range of 57 *441 to 71 months of imprisonment, based in part on a four-level enhancement to the offense level under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony offense. The district court sentenced Ather-ton to 71 months, to run concurrently with his state sentence. On appeal, Atherton argues that the enhancement for possession of a firearm in connection with another felony offense was erroneous.

Atherton admits that he did not raise this objection below. Therefore, the application of the enhancement is reviewed for plain error. See United, States v. Vonner, 516 F.3d 382, 385 (6th Cir.2008) (en banc). No plain error occurred. Atherton relies on United States v. Sanders, 162 F.3d 396, 400 (6th Cir.1998), for the proposition that a felony committed at the same time and based on the same conduct is not “another felony” for purposes of the § 2K2.1(b)(6)(B) enhancement. However, in doing so, he misrepresents that he was only convicted in state court of carrying a concealed deadly weapon, based on the same weapon possession that led to his federal convictions. He neglects to mention his first-degree stalking conviction, which was clearly not based on the same conduct as his federal convictions, and was therefore properly the basis for the enhancement.

Accordingly, the district court’s judgment is affirmed.

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PER CURIAM.

Douglas Atherton, a federal prisoner, appeals through counsel the 71-month sentence imposed following his guilty plea to charges of possession of a firearm while under a domestic violence order and possession of a firearm by a convicted felon.

A relative of Atherton’s called the police to report that Atherton had been making threats against his estranged wife and that he had a gun. The police found Atherton passed out in a parked vehicle. He had a pistol in his back pocket. Atherton was convicted in state court of carrying a concealed deadly weapon and first-degree stalking. He was sentenced to three years of imprisonment. After Atherton’s guilty plea to the above federal charges, a pre-sentence report was prepared that calculated a guidelines sentencing range of 57 *441 to 71 months of imprisonment, based in part on a four-level enhancement to the offense level under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony offense. The district court sentenced Ather-ton to 71 months, to run concurrently with his state sentence. On appeal, Atherton argues that the enhancement for possession of a firearm in connection with another felony offense was erroneous.

Atherton admits that he did not raise this objection below. Therefore, the application of the enhancement is reviewed for plain error. See United, States v. Vonner, 516 F.3d 382, 385 (6th Cir.2008) (en banc). No plain error occurred. Atherton relies on United States v. Sanders, 162 F.3d 396, 400 (6th Cir.1998), for the proposition that a felony committed at the same time and based on the same conduct is not “another felony” for purposes of the § 2K2.1(b)(6)(B) enhancement. However, in doing so, he misrepresents that he was only convicted in state court of carrying a concealed deadly weapon, based on the same weapon possession that led to his federal convictions. He neglects to mention his first-degree stalking conviction, which was clearly not based on the same conduct as his federal convictions, and was therefore properly the basis for the enhancement.

Accordingly, the district court’s judgment is affirmed.

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568 F. App'x 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-douglas-atherton-ca6-2014.

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