United States v. Keith , 143 F. App'x 624 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-10617
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEANNA LYNN KEITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-14-ALL-Y
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Deanna Lynn Keith appeals from her guilty-plea conviction
for bank robbery. She argues that the district court erred by
imposing a six-level adjustment pursuant to U.S.S.G.
§ 2B3.1(b)(2)(B) because she “otherwise used” a firearm during
her offense of conviction. Because the facts underlying this
issue are undisputed, we review the district court’s application
of this adjustment de novo. United States v. Gonzales, 40 F.3d
735, 738 (5th Cir. 1994); see also United States v. Villanueva,
*
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this opinion should not be published and is not precedent except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. 04-10617
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408 F.3d 193, 202, 203 n.9 (5th Cir. 2005)(holding that, post-
Booker, this court continues to utilize the same standards of
review when considering a district court’s application of the
Sentencing Guidelines and findings of fact). Keith’s statements
to the bank teller, expressed while Keith was pointing a firearm
at the teller, were sufficient to qualify as having “otherwise
used” a firearm. See United States v. Nguyen, 190 F.3d 656, 661
(5th Cir. 1999) (firearm was “otherwise used” when robbers
“clearly signaled that further violence, including use of the
guns, would be the consequence of resistance”); U.S.S.G. § 1B1.1,
comment. (n.1(I)); cf. United States v. De La Rosa, 911 F.2d 985,
993 (5th Cir. 1990) (firearm was “otherwise used” during
kidnapping offense when defendant “waved a gun during an argument
and warned that anyone going to the police would have to deal
with her.”).
Keith also contends that the district court erred by
imposing a two-level adjustment pursuant to U.S.S.G. § 3C1.1
because she threw the stolen money and the contents of her purse
out of her car window as she was being pursued by police officers
immediately after the robbery. She asserts that, pursuant to
U.S.S.G. § 3C1.1, comment. (n.4(d)), her obstructive conduct did
not qualify for the obstruction adjustment because her conduct
was contemporaneous with her arrest and was not a material
hindrance to the official investigation of her offense.
Regardless of whether Keith’s obstructive conduct was
No. 04-10617
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contemporaneous with her arrest, throwing the stolen money out of
her car window was a material hindrance to the official
investigation of her offense. See United States v. Ainsworth,
932 F.2d 358, 362 (5th Cir. 1991). The district court’s
imposition of the obstruction adjustment on this basis did not
constitute clear error. See id.
For the first time on appeal, Keith argues that her sentence
should be vacated and the case remanded for resentencing in light
of United States v. Booker, 125 S. Ct. 738 (2005), because the
facts underlying her sentencing adjustments were not proved to a
jury beyond a reasonable doubt or admitted by her and because the
district court utilized a mandatory sentencing scheme rather than
an advisory one. There was no Sixth Amendment violation in this
case because Keith admitted to the facts underlying the
sentencing adjustments. See United State v. Holmes, 406 F.3d
337, 364 (5th Cir. 2005). Her challenge to the district court’s
use of a mandatory sentencing scheme fails to meet the plain-
error standard because she has not shown that the error affected
her substantial rights. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 733-34 (5th Cir. 2005).
AFFIRMED.