United States v. Kelly

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31380 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GLENN WAYNE KELLY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-50061-ALL -------------------- May 2, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Glenn Wayne Kelly appeals from his sentence following his

guilty plea conviction for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Kelly challenges

the district court’s four-point increase in the total offense

level for possession of a firearm “in connection with another

felony” pursuant to U.S.S.G. § 2K2.1(b)(5). Kelly argues that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-31380 -2-

the Government did not establish that he possessed a firearm in

connection with a felony offense as required by § 2K2.1(b)(5).

The district court’s application of the § 2K2.1(b)(5)

enhancement will be upheld unless it is implausible in light of

the record as a whole. See United States v. Condren, 18 F.3d

1190, 1199 (5th Cir. 1994). The Government was required to show

only that the gun was available to Kelly and that the weapon

could have been used to facilitate the other crime. Condren, 18

F.3d at 1197-1200; United States v. Armstead, 114 F.3d 504, 511-

512 (5th Cir. 1997). We have reviewed the record and conclude

that the district court did not err in applying § 2K2.1(b)(5).

Kelly’s sentence is therefore AFFIRMED.