United States v. Shawn Hott

866 F.3d 618, 2017 WL 3379254, 2017 U.S. App. LEXIS 14499
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 7, 2017
Docket16-11435
StatusPublished
Cited by14 cases

This text of 866 F.3d 618 (United States v. Shawn Hott) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Shawn Hott, 866 F.3d 618, 2017 WL 3379254, 2017 U.S. App. LEXIS 14499 (5th Cir. 2017).

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

Shawn Keith Hott pleaded guilty to .being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).. The district court sentenced Hott to 120 months of imprisonment. Hott challenges his sentence on appeal. For the reasons set forth below, we AFFIRM.

I

In 2015, Hott approached an unidentified witness who was using a storage facility in Fort Worth, Texas, stating that he makes guns and silencers. Hott showed the witness firearms, homemade silencers, and ammunition. Hott also displayed bags of ammonium nitrate and aluminum powder, which he stated could be combined to explode and level a building. Concerned' by Hott’s statements and display, the witness alerted law enforcement authorities. Federal agents later entered Hott’s storage unit pursuant to a search warrant, and seized thousands of rounds of ammunition, along with bags of ammonium nitrate and aluminum powder. A subsequent search of Hott’s RV pursuant to a search warrant revealed firearms, silencers, and more ammunition.

Hott was indicted for one count of being a felon in possession ■ of ⅛ firearm and ammunition under 18 U.S.C. § 922(g)(1). Pursuant to U.S.S.G. § 2K2.1(a)(3), the Presentence Report (PSR) calculated Hott’s base offense level to be 22 based on a prior Texas felony conviction for possession with intent to deliver methamphetamine. The PSR added four levels under U.S.S.G. § 2K2.1(b)(l)(B) based on the amount of firearms involved in the offense. The PSR also • added four levels under U.S.S.G. § 2K2.1(b)(6)(B) because Hott used or possessed a firearm or ammunition in connection with another felony offense. *620 Finally, the PSR-recommended that Hott did not qualify for a sentence reduction based on acceptance of responsibility under U.S.S.G. § 3El.l(a).

The Sentencing Guidelines range was calculated as "135 to 168 months, but because the statutory maximum sentence was ten years, the Guidelines range became 120 months. The district court sentenced Hott to 120 months.

II

A.

First, Hott contends that the district ■ court erred in imposing the § 2K2.1(b)(6)(B) enhancement for using or possessing a firearm in connection with another felony offense. He raised this objection before the district court, which overruled the objection. We review the district court’s application of the enhancement de novo and its factual findings for clear error. See United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).

The enhancement applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense.” U.S.S.G. § 2K2.1 cmt. n.l4(A), The district court imposed the enhancement on the basis that Hott possessed silencers in connection with another felony offense, namely, manufacturing and selling silencers in violation of the National Firearms Act. See United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir. 1989) (en banc) (explaining that a “silencer” is considered a “firearm” under the National Firearms Act). The silencers were not cited in the offense of conviction. If the firearm used to support the enhancement is not a firearm cited in the offense of conviction, the enhancement applies if the offense of conviction and “another felony offense” were “part of the same course of conduct or common scheme or . plan.” See U.S.S.G. § 2K2.1. cmt. n.l4(E)(ii).

Hott argues that his possession of the firearm and ammunition cited in the offense of conviction did not facilitate or have the potential of facilitating his manufacture or sale of silencers. But the relevant inquiry here is whether his possession of the silencers not cited in the offense of conviction facilitated or had the potential of facilitating the unlawful manufacture or sale of silencers. See id. cmt. n.14(A) & n,14(E)(ii). The district court did not err in concluding that Hott’s conduct meets the requirements.

B.

Second, Hott argues that the district court plainly erred by adopting the PSR’s recommendation that he should not be given a sentence reduction under U.S.S.G. § 3El.l(a) for acceptance of responsibility. A defendant may receive’ a two-level reduction in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). This court “will affirm a. sentencing court’s decision not to award a reduction .,. unless it is without foundation, a standard of review more deferential than the clearly erroneous standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks omitted) (quoting United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999)). During a presentence interview, Hott was “adamant that the firearms and ammunition belonged to the defendant’s roommate and coworker who lived with the defendant in his RV.” Hott does not show plain error and, in any event, the district court had foundation to deny the reduction.

C.

Third, Hott contends that the government selectively and vindictively prosecuted him, citing the government’s enforcement of marijuana laws. Hott’s ar *621 gument lacks adequate legal support. Moreover, Hott waived this argument by-entering an unconditional guilty plea.

D.

Finally, Hott argues that the district court erred by imposing a base offense level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3), which requires a previous felony conviction for a crime of violence or controlled substance offense. Because he did not object to application of § 2K2.1 below, we review for plain error. See United States v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017). To satisfy plain error review, Hott must demonstrate that an error was clear or obvious and that it affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Substantial rights are affected when there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1343,194 L.Ed.2d 444 (2016) (internal quotation marks omitted). This court has discretion to correct a plain error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

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Bluebook (online)
866 F.3d 618, 2017 WL 3379254, 2017 U.S. App. LEXIS 14499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shawn-hott-ca5-2017.