USA v. Joe McNabb

Filing

USA v. Joe McNabb

Doc. 0

Case: 09-41176

Document: 00511189772

Page: 1

Date Filed: 07/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41176 S u m m a r y Calendar July 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O E MCNABB, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-543-2

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J o e McNabb appeals the 293-month sentence imposed following his guilty p le a convictions to aiding and abetting in the possession of eight stolen firearms, s t e a lin g 20 firearms from a licensed firearms dealer, and being a felon in p o s s e s s io n of 20 firearms. McNabb argues that the district court erred in

e n h a n c in g his offense level pursuant to U.S.S.G. § 2K2.1(b)(6) based on the use o f a firearm in connection with another felony offense, burglary of a building.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-41176

Document: 00511189772 Page: 2 No. 09-41176

Date Filed: 07/30/2010

T h e Government contends that McNabb waived this argument in the district c o u r t. However, the record does not reflect that McNabb affirmatively

r e lin q u is h e d his right to assert an objection to the enhancement. See United S ta te s v. Olano, 507 U.S. 725, 733 (1993). M c N a b b makes specific arguments on appeal that he did not make in the d is t r ic t court. Therefore, review of those arguments is for plain error. See U n ite d States v Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir.), cert. denied, 130 S . Ct. 227 (2009). M c N a b b argues for the first time on appeal that under Texas law his o ffe n s e of burglary was complete when he entered the gun shop with the intent t o steal and, thus, the subsequently stolen firearms could not be used to fa c ilit a t e a crime already committed. He argues that a plain reading of the G u id e lin e s implies that there must be a second crime committed before imposing t h e enhancement. S e c t io n 2K2.1(b)(6) authorizes a four-level increase of a defendant's offense le v e l "[i]f the defendant used or possessed any firearm or ammunition in c o n n e c t io n with another felony offense." Both the commentary following this G u id e lin e and this court's interpretation of the Guideline support this e n h a n c e m e n t if a firearm is obtained contemporaneously with the commission o f a burglary offense. See United States v. Armstead, 114 F.3d 504, 512-13 (5th C ir . 1997); U.S.S.G. § 2K2.1, comment. (n. 14(B)). I n s o fa r as McNabb argues that the possession of the firearm was not s e p a r a t e in time and conduct from the burglary, this court has rejected the a r g u m e n t that the other felony offense must be distinct from the possession of t h e weapon. See United States v. Perez, 585 F.3d 880, 886-87 (5th Cir. 2009); A r m s te a d , 114 F.3d at 512. T h e district court did not plainly err in enhancing McNabb's offense level p u r s u a n t to § 2K2.1(b)(6). See Puckett v. United States, 129 S. Ct. 1423, 1429 (2 0 0 9 ). The sentence imposed is AFFIRMED. 2