United States v. Mitchell

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 23, 2003
• Docket: 02-51064
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-51064 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY LESTER MITCHELL, JR., also known as Roy Lester Mitchell,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-02-CR-42-1 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Roy Lester Mitchell, Jr., appeals the sentence he received

following his guilty-plea conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

The sentence imposed will be upheld unless it was imposed in

violation of the law or as a result of an incorrect application

of the guidelines; in reviewing the sentence, the district

court’s fact findings are reviewed for clear error and its legal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51064 -2-

conclusions are reviewed de novo. United States v. Armstead, 114

F.3d 504, 507 (5th Cir. 1997).

Mitchell argues that the district court erred in assessing a

four-point sentencing increase, pursuant to U.S.S.G.

§ 2K2.1(b)(5), because there was no proof that the gun was

possessed in connection with any drug-trafficking crime,

particularly because no crack cocaine was found in his home at

the time the search warrant was executed. He urges that the

record shows that he had the gun to protect his family following

an armed robbery of his home.

Contrary to Mitchell’s assertions, the record establishes

that he was dealing drugs out of his home, as evidenced by the

fact that several controlled purchases of crack cocaine were made

there, that drug paraphernalia and proceeds were found there, and

that Mitchell, despite specifically denying that he dealt in

crack cocaine, admitted to possessing drug money and to buying

and selling drugs at the street values reflected in the ledgers

he kept. That no crack cocaine was actually found at the time of

the search is irrelevant. See Armstead, 114 F.3d at 511.

Because the gun was kept at Mitchell’s residence and could have

been used to facilitate his drug trafficking, the four-point

enhancement was appropriate. See id. at 507, 512.

Mitchell next asserts that the district court improperly

denied his request for a § 5K2.12 downward departure based on the

fact that he possessed the gun under duress. He does not contend No. 02-51064 -3-

that the district court’s denial was based on a mistaken belief

that it lacked the authority to grant the departure.

Consequently, this issue is not reviewable by this court. See

United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000).

Mitchell has not demonstrated any error in the sentence he

received. The district court’s judgment is therefore AFFIRMED.