United States v. Sexton , 73 F. App'x 692 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 03-40217
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY KENYON SEXTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-52-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tracy Kenyon Sexton appeals the 105-month sentence imposed
following his plea of guilty to a charge of felon in possession
of a firearm. Sexton challenges an increase to his offense level
pursuant to U.S.S.G. § 2K2.1(b)(5). He argues that mere
possession of the firearm during another felony offense does not
justify the increase. He contends that the Government did not
prove that the firearm was used in connection with the commission
*
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that this opinion should not be published and is not precedent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. 03-40217
-2-
of the unauthorized use of a motor vehicle (“UUMV”) offense, in
furtherance of the UUMV offense, or in obtaining the vehicle.
The determination of the connection between a firearm and
another offense is a factual finding. United States v. Mitchell,
166 F.3d 748, 754 n.24 (5th Cir. 1999). We review factual
findings for clear error. United States v. Armstead, 114 F.3d
504, 507 (5th Cir. 1997).
Section § 2K2.1(b)(5), U.S.S.G., authorizes a four-level
increase “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” A “close
relationship between the firearm and the other felony offense”
need not be shown; the showing required is only that the
“firearms were possessed and could have been used to facilitate”
the other felony offense. Armstead, 114 F.3d at 511, 512.
The presentence report provided that while he was involved
in the UUMV offense, a police officer saw Sexton pick up a black
revolver. The district court did not clearly err in applying the
U.S.S.G. § 2K2.1(b)(5) increase to Sexton’s offense level because
the firearm was “readily available” to Sexton and “could have
been used to facilitate” his UUMV offense. See Armstead, 114
F.3d at 512. The district court properly relied on the
information in the presentence report, which Sexton did not rebut
sufficiently. See Mitchell, 166 F.3d at 754. Accordingly, the
judgment of the district court is AFFIRMED.