United States v. Damond ( 2022 )

Case: 21-30385 Document: 00516206323 Page: 1 Date Filed: 02/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 17, 2022
No. 21-30385
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Joshua Damond,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CR-174-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Joshua Damond appeals the sentence imposed following his guilty
plea conviction for possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g). He argues that the district court clearly erred by applying
a four-level U.S.S.G. § 2K2.1(b)(6)(B) enhancement because he did not
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-30385 Document: 00516206323 Page: 2 Date Filed: 02/17/2022
No. 21-30385
possess the firearm “in connection with” another felony offense. Damond
also argues that the district court plainly erred by applying a two-level
U.S.S.G. § 3C1.2 enhancement for reckless endangerment during his flight
from law enforcement because application of both enhancements constitutes
impermissible double counting.
We review application of the § 2K2.1(b)(6)(B) enhancement for clear
error. United States v. Bass, 996 F.3d 729, 742 (5th Cir. 2021). In at least two
factually similar but unpublished cases, 1 we concluded that the defendant’s
possession of a firearm facilitated, or had the potential of facilitating, his
felony offense of flight from law enforcement. See United States v. Anderson,
841 F. App’x 729, 730-31 (5th Cir.), cert. denied 142 S. Ct. 375 (2021); United
States v. Priestley, 269 F. App’x 349, 350 (5th Cir. 2008). As in those cases,
the finding that Damond’s possession of a firearm facilitated, or had the
potential of facilitating, his felony offense of aggravated flight from law
enforcement is plausible in light of the record as a whole and, thus, not clearly
erroneous. See Bass, 996 F.3d at 742. The fact that Damond threw the
firearm from his vehicle partway through the pursuit does not change our
conclusion. See Anderson, 841 F. App’x at 730-31.
Damond did not raise his double counting objection before the district
court, so he concedes that review is for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). Because Damond continued his high-speed
flight from law enforcement after he threw the firearm from his vehicle,
possession of the firearm and reckless endangerment of other drivers may be
viewed as “temporally and geographically separate.” United States v.
1
Although unpublished opinions are not binding authority, see 5th Cir. R.
47.5.4, they are persuasive and provide helpful examples of what this court has done when
faced with a similar factual scenario. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th
Cir. 2006); see also United States v. Cluff, 857 F.3d 292, 299 (5th Cir. 2017).
2
Case: 21-30385 Document: 00516206323 Page: 3 Date Filed: 02/17/2022
No. 21-30385
Gillyard, 261 F.3d 506, 511-12 (5th Cir. 2001). Therefore, we conclude that
Damond has failed to show that the district court erred, much less plainly
erred, in applying the § 3C1.2 enhancement. See Puckett, 556 U.S. at 135.
AFFIRMED.
3