USA v. Kerianne Green

Filing

UNPUBLISHED OPINION FILED. [10-40114 Vacated and Remanded] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 01/11/2011 for Appellant Kerianne Green [10-40114]

USA v. Kerianne Green se: 10-40114 Ca

Document: 00511327925 Page: 1 Date Filed: 12/21/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40114 S u m m a r y Calendar December 21, 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. K E R I A N N E GREEN, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:08-CR-1411-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* I n this appeal, we review Defendant­Appellant Kerianne Green's sentence r e s u lt in g from a guilty plea conviction for knowingly and willfully making and c a u s i n g to be made a false statement in the records of a federally licensed fir e a r m s dealer, pursuant to 18 U.S.C. §§ 924(a)(1)(A), (a)2. The evidence

s h o w e d that Green purchased five Beretta pistols in McAllen, Texas, which she t h e n smuggled into Mexico for her common-law spouse, Gabriel Gardea, and a m a n identified in the presentence report as FNU LNU.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-40114 Document: 00511327925 Page: 2 Date Filed: 12/21/2010 No. 10-40114 G r e e n contends that the district court erred in applying a four-level en han cem en t under U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.)

§ 2K2.1(b)(5) (2010). Although Green has completed her sentence of 12 months a n d a day, her case is not moot because she presently is serving her two-year s u p e r v is e d release term. See United States v. Lares-Meraz, 452 F.3d 352, 355 (5 t h Cir. 2006) (per curiam). U n d e r § 2K2.1(b)(5), a four-level enhancement is applied if the defendant: (i) t r a n s p o r t e d , transferred, or otherwise disposed of two or more f i r e a r m s to another individual, or received two or more fir e a r m s with the intent to transport, transfer, or otherwise d is p o s e of firearms to another individual; and k n e w or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an in d iv id u a l-- (I) w h o s e possession or receipt of the firearm would be unlawful; or w h o intended to use or dispose of the firearm unlawfully.

(ii)

(II)

§ 2K2.1, 2006 amend. cmt. n.13(A). The commentary to § 2K2.1 provides that a n individual whose possession or receipt of the firearm would be unlawful " m e a n s an individual who (i) has a prior conviction for a crime of violence, a c o n t r o lle d substance offense, or a misdemeanor crime of domestic violence; or (ii) a t the time of the offense was under a criminal justice sentence . . . ." § 2K2.1, 2 0 0 6 amend. cmt. n.13(B). T h e district court's application of the Sentencing Guidelines is reviewed d e novo, and its factual findings are reviewed for clear error. United States v. C is n e r o s -G u t i e r r e z , 517 F.3d 751, 764 (5th Cir. 2008). This court upholds a d is t r ic t court's factual finding on clear error review so long as the enhancement is plausible in light of the record as a whole. United States v. Gonzales, 436 F.3d 5 6 0 , 584 (5th Cir. 2006). The Government must prove sentencing enhancements 2

Case: 10-40114 Document: 00511327925 Page: 3 Date Filed: 12/21/2010 No. 10-40114 b y a preponderance of the evidence. United States v. Trujillo, 502 F.3d 353, 357 (5 t h Cir. 2007). Here, the Government concedes that the district court erred by imposing t h e § 2K2.1(b)(5) enhancement because there was no evidence that either Gardea o r FNU LNU had a relevant criminal conviction or was under a criminal justice s e n te n c e at the time of the offense. See § 2K2.1, 2006 amend. cmt. n.13(B). But fo r this error, Green would have faced a Guideline imprisonment range of only 6 to 12 months in prison. See U.S.S.G. ch. 5, pt. A, sentencing table (2010). The G o v e r n m e n t admits that there is no evidence that the district court would have im p o s e d the same sentence of 12 months and a day but for the misapplication o f the Guideline. Without proof that, but for the error, the district court would h a v e imposed the same sentence, the Government cannot meet its burden to p r o v e that the error is harmless. See United States v. Delgado-Martinez, 564 F .3 d 750, 753-54 (5th Cir. 2009). For the foregoing reasons, Green's sentence is v a c a t e d and we remand for resentencing.

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