United States v. Evans

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 27, 2000
• Docket: 99-41375
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41375 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JONATHAN EVANS, also known as Lucky,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:99-CR-22-1 -------------------- June 23, 2000

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jonathan Evans appeals his sentence, challenging a four-

point increase in the total offense level for possession of a

firearm “in connection with another felony”. U.S.S.G.

§ 2K2.1(b)(5). The district court upheld the four-point increase

based on a finding that Evans possessed firearms in connection

with the “burglary or attempted burglary” of the Sportster, a

federally licensed firearms dealer.

Evans contends that there was not “another felony offense”

committed at the Sportster because the Sportster was not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-41375 -2-

burglarized. He did not object at the sentencing hearing to the

district court’s finding that there had been a “burglary or

attempted burglary” of the Sportster. Review is therefore

limited to plain error. United States v. Vontsteen, 950 F.3d

1086, 1091 (5th Cir. 1992) (en banc). In order to be reviewable,

the error must be an obvious legal error that affects the

defendant’s substantial rights. United States v. Calverly, 37

F.3d 160, 164 (5th Cir. 1994) (en banc).

The sentence enhancement was proper not only if Evans

possessed a firearm “in connection with another felony offense,”

but also if he possessed it “with knowledge, intent, or reason to

believe that it would be used or possessed in connection with

another felony offense.” § 2K2.1(b)(5) (emphasis added). See

United States v. Payton, 198 F.3d 980, 982-83 (7th Cir. 1999);

red brief, 19-21. “Felony offense,” as used in § 2K2.1(b)(5),

means any federal, state, or local offense “punishable by

imprisonment for a term exceeding one year, whether or not a

criminal charge was brought, or conviction obtained.” § 2K2.1,

comment. (n.7).

There was no burglary of the Sportster that could constitute

“another felony offense”. If, as the district court concluded,

there were an attempted burglary of the Sportster under Texas

law, or if there were a conspiracy to commit a burglary under

Texas law, neither the attempt nor the conspiracy would

constitute a felony offense under § 2K2.1(b)(5) because those

crimes are not punishable by imprisonment for a term exceeding No. 99-41375 -3-

one year. Tex. Penal Code Ann. §§ 12.21, 12.35, 15.01, 15.02 &

30.02.

The district court thus committed obvious or clear error by

basing the adjustment on “burglary or attempted burglary”. The

error affected Evans’s substantial rights because it increased

his offense level by four points. However, this obvious error

does not entitle Evans automatically to a reversal of his

sentence because, once this court determines an unobjected-to

error to be obvious, it will correct the error only if it

seriously affects the fairness, integrity, or public reputation

of the judicial proceeding. Calverly, 37 F.3d at 164.

The record establishes that Evans possessed the firearms

“with knowledge, intent, or reason to believe” that they would be

possessed in connection with the planned burglary of the

Sportster - a Texas-law felony. See Tex. Penal Code §§ 30.02 &

12.35(a). This alternative basis of upholding the four-point

increase shows that the plain error does not affect the fairness,

integrity, or public reputation of the judicial proceeding. See

United States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993) (court

may affirm on any basis shown in the record).

The judgment of the district court is AFFIRMED.