United States v. Pereneal Kizzee ( 2019 )

Case: 18-20306 Document: 00514916745 Page: 1 Date Filed: 04/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20306 FILED
Summary Calendar April 15, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PERENEAL KIZZEE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-601-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Pereneal Kizzee was charged with possession of ammunition and
firearms by a convicted felon (count one), possession of a controlled substance
with intent to deliver (count two), and possession of a firearm during and in
relation to a drug trafficking crime (count three). On direct appeal, this court
vacated Kizzee’s convictions for counts two and three and remanded to the
district court for retrial on those counts. The Government moved to dismiss
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 18-20306
counts two and three, and the district court granted the motion. At a
resentencing hearing, the district court reimposed the original sentence as to
count one: 70 months of imprisonment and three years of supervised release.
On appeal, Kizzee argues that the district court erroneously applied a
four-level enhancement to the base offense level for using or possessing a
firearm or ammunition in connection with another felony offense, pursuant to
U.S.S.G. § 2K2.1(b)(6)(B), which he contends no longer applied after the
Government dismissed counts two and three. Further, Kizzee claims that his
appointed counsel at the resentencing hearing rendered ineffective assistance
by failing to object to the enhancement. The Government argues that the law
of the case doctrine and its corollary the mandate rule preclude review of
Kizzee’s arguments. However, we decline to address the applicability of these
doctrines and instead proceed to the merits. See, e.g., United States v. Ramos-
Gonzales, 857 F.3d 727, 730 n.3 (5th Cir. 2017); United States v. Simpson, 796
F.3d 548, 552 & n.7 (5th Cir. 2015).
Because Kizzee did not object to the enhancement at the resentencing
hearing, this court’s review is for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 368 (5th Cir. 2009). To establish plain error, Kizzee
must show a forfeited error that is clear or obvious and that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. As pertains to a § 2K2.1(b)(6)(B) enhancement, “[t]he district
court’s determination of the relationship between the firearm and another
offense is a factual finding,” as is a district court’s determination of what
activity constitutes relevant conduct. United States v. Coleman, 609 F.3d 699,
708 (5th Cir. 2010); see United States v. Hinojosa, 484 F.3d 337, 340 (5th Cir.
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No. 18-20306
2007). A question of fact that could have been resolved upon proper objection
cannot constitute plain error. United States v. Rodriguez, 602 F.3d 346, 361
(5th Cir. 2010).
Kizzee argues that the dismissal of counts two and three categorically
prevented the application of § 2K2.1(b)(6)(B). Section 2K2.1(b)(6)(B) provides
that the base offense level for a firearms offense should be increased by four
levels “[i]f the defendant . . . used or possessed any firearm . . . in connection
with another felony offense.” Another felony offense, in turn, “means any
Federal, state, or local offense, other than the explosive or firearms possession
or trafficking offense, punishable by imprisonment for a term exceeding one
year, regardless of whether a criminal charge was brought, or a conviction
obtained.” § 2K2.1, comment. (n.14(C)).
If Kizzee had objected, the district court could have resolved the factual
question whether the preponderance of the evidence supported the finding that
he possessed a firearm in connection with a felony offense. See United States
v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009). Therefore, the application of
the § 2K2.1(b)(6)(B) enhancement cannot constitute plain error. See
Rodriguez, 602 F.3d at 361. As to Kizzee’s ineffective assistance of counsel
claim, we decline to review it without prejudice to any right Kizzee may have
to raise such a claim in a later postconviction proceeding. See United States v.
Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Based on the foregoing, the judgment is AFFIRMED.
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