United States v. Deason , 124 F. App'x 222 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 04-30298
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
QUINTON WESLEY DEASON
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CR-30018-ALL
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Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Quinton Wesley Deason appeals his sentence following guilty-
plea convictions for possession of a stolen firearm and
forfeiture in violation of 18 U.S.C. §§ 922(j) and 924(d)(1).
Specifically, he argues that the district court erred in
calculating his base offense level under United States Sentencing
Guidelines § 2K2.1(a).
Section 2K2.1(a)(5) provides a base offense level of 12 for
the offense of illegal possession of a firearm and a base offense
*
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this opinion should not be published and is not precedent except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. 04-30298
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level of 18 if the offense involved a firearm described in 26
U.S.C. § 5845(a), which includes a rifle having a barrel of 16
inches or less. See 26 U.S.C. § 5845(a)(3). Illegal possession
of a firearm is a continuing offense. See United States v.
Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996).
Given that Deason modified the rifle while he illegally
possessed it and given that “relevant conduct” under the
Sentencing Guidelines includes acts committed during the
commission of the offense, Deason has not shown that the district
court erred in calculating his base offense level. See U.S.S.G.
§ 1B1.3(a); United States v. Solis, 299 F.3d 420, 461 (5th Cir.
2002).
Deason’s argument that consideration of the firearm
modification to calculate his base offense level resulted in an
overstatement of the seriousness of his crime is also without
merit. Contrary to the Seventh Circuit precedent on which he
relies, the conduct at issue (here, the modification of the
rifle) was not attenuated from the offense of conviction (here,
the theft of the rifle). See United States v. Taylor, 272 F.3d
980, 981 (7th Cir. 2001); United States v. Ritsema, 31 F.3d 559,
562; see also United States v. Partington, 21 F.3d 714, 719 (6th
Cir. 1994). In addition, Deason told the probation officer that
he intended to alter the serial number and sell the rifle. Thus,
there was no evidence in the presentence report to indicate that
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the altered rifle was intended for Deason’s gun collection or
that it would have been used for a lawful or non-violent purpose.
Deason has filed a letter pursuant to FED. R. APP. P. 28(j)
calling our attention to the Supreme Court’s decision in Blakely
v. Washington, 124 S. Ct. 2531 (2004). However, we have held
that Blakely does not apply to the United States Sentencing
Guidelines. United States v. Pineiro, 377 F.3d 464, 465-66 (5th
Cir. 2004), petition for cert. filed, (U.S. Jul. 14, 2004) (No.
03-30437).
AFFIRMED.