United States v. Mitchell ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-51064
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY LESTER MITCHELL, JR.,
also known as Roy Lester Mitchell,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-42-1
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Roy Lester Mitchell, Jr., appeals the sentence he received
following his guilty-plea conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The sentence imposed will be upheld unless it was imposed in
violation of the law or as a result of an incorrect application
of the guidelines; in reviewing the sentence, the district
court’s fact findings are reviewed for clear error and its legal
*
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that this opinion should not be published and is not precedent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. 02-51064
-2-
conclusions are reviewed de novo. United States v. Armstead, 114
F.3d 504, 507 (5th Cir. 1997).
Mitchell argues that the district court erred in assessing a
four-point sentencing increase, pursuant to U.S.S.G.
§ 2K2.1(b)(5), because there was no proof that the gun was
possessed in connection with any drug-trafficking crime,
particularly because no crack cocaine was found in his home at
the time the search warrant was executed. He urges that the
record shows that he had the gun to protect his family following
an armed robbery of his home.
Contrary to Mitchell’s assertions, the record establishes
that he was dealing drugs out of his home, as evidenced by the
fact that several controlled purchases of crack cocaine were made
there, that drug paraphernalia and proceeds were found there, and
that Mitchell, despite specifically denying that he dealt in
crack cocaine, admitted to possessing drug money and to buying
and selling drugs at the street values reflected in the ledgers
he kept. That no crack cocaine was actually found at the time of
the search is irrelevant. See Armstead, 114 F.3d at 511.
Because the gun was kept at Mitchell’s residence and could have
been used to facilitate his drug trafficking, the four-point
enhancement was appropriate. See id. at 507, 512.
Mitchell next asserts that the district court improperly
denied his request for a § 5K2.12 downward departure based on the
fact that he possessed the gun under duress. He does not contend
No. 02-51064
-3-
that the district court’s denial was based on a mistaken belief
that it lacked the authority to grant the departure.
Consequently, this issue is not reviewable by this court. See
United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000).
Mitchell has not demonstrated any error in the sentence he
received. The district court’s judgment is therefore AFFIRMED.