United States v. Morris , 78 F. App'x 342 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK D. MORRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-50068-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Derrick D. Morris appeals his sentence following a guilty-plea
conviction for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). Morris argues that the
district court erred in departing upward on the basis of death
pursuant to U.S.S.G. § 5K2.1.
The provision relied upon by Morris applies when a defendant
used or possessed a firearm “in connection with the commission or
*
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that this opinion should not be published and is not precedent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. 03-30206
-2-
attempted commission of another offense.” U.S.S.G. §
2K2.1(c)(1)(B). Morris has not argued that he used or possessed
the assault rifle in relation to an underlying offense, thereby
triggering the clause. See id., comment. (n.14). Section 2K2.1
does not take into account the factor of a resultant death if the
firearm-possession offense was not related to an underlying
offense. See § 5K2.0. Furthermore, the guideline specifically
provides that the district court may depart upward on the basis of
death. § 2K2.1, comment. (n.16); see also § 5K2.1, p.s.
Regardless whether this court applies a de-novo or an abuse-of-
discretion standard of review, we affirm the sentence imposed by
the district court because it did not err in departing upward on
the basis of death. See 18 U.S.C. § 3742(e)(4); United States v.
Semsak, No. 02-30153, 2003 WL 21730615, at *1 (9th Cir. Jul. 28,
2003); United States v. Camejo, 333 F.3d 669, 675 (6th Cir. 2003);
United States v. Tarantola, 332 F.3d 498, 500 (8th Cir. 2003); but
see United States v. Jones, 332 F.3d 1294, 1299-1300 (10th Cir.
2003) (applying de novo standard of review to an appeal pending as
of April 30, 2003).
AFFIRMED.