United States v. Frank Orlowski

667 F. App'x 849

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 4, 2016
• Docket: 15-10782 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Frank Orlowski pleaded guilty to possessing methamphetamine with the intent to distribute it. The district court sentenced him to the statutory maximum of 20 years of imprisonment to be followed by three years of supervised release. Orlowski timely appealed.

In his sole issue on appeal, Orlowski challenges a two-level enhancement applied by the district court pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm was possessed in connection with the offense. Orlowski contends that the district court erroneously applied the enhancement based on the recovery of a firearm from the vehicle of a customer who had just left Orlowski’s following a drug transaction. Orlowski asserts that this was the sole basis for the district court’s application of the § 2D1.1(b)(1) enhancement, and it is thus the only basis he addresses.

The record reflects that the district court also found that the § 2Dl.l(b)(l) enhancement was warranted based on reliable evidence found in the presentence report that Orlowski himself had pos sessed a firearm in connection with the offense. By failing to acknowledge and brief this additional basis for the application of the enhancement, Orlowski has waived any challenge to the finding that the -enhancement was applicable based on Orlowski’s own firearm possession. See Fed. R. App. P. 28(a)(8)(A); United States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002). We therefore affirm the judgment of the district court. See United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) (holding that “[w]e may affirm an enhancement on any ground supported by the record”).

AFFIRMED.

* Pursuant to 5th Cir. R. 47,5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.