United States v. Davis ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 20, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 03-20844
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL DAVIS,
Defendant - Appellant;
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(H-02-CR-634-1)
______________________________________________________________________________
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review Daniel Davis’ (hereinafter, “Davis”) sentence of 151 months’
imprisonment imposed after he pleaded guilty to (1) conspiracy to violate the laws of the United
States by receiving, possessing, selling, and disposing of stolen firearms, (2) aiding and abetting
the receiving, possessing, selling, and disposing of firearms, (3) theft from a federal firearms
licensee, and (4) receipt of a firearm while under indictment.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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Though Davis pleaded guilty to the burglary of a gun range, he argues that he did not
posses any firearms upon entering the gun range, and that his subsequent possession of the stolen
firearms after breaking into the gun range does not satisfy the nexus requirement for possession
for the purposes of U.S.S.G. § 2K2.1(b)(5). We disagree.
This court has held that subsequent possession of firearms satisfies the nexus requirement
for possession because those firearms could have been used to facilitate the crimes at issue. See
United States v. Armstead, 114 F.3d 504, 512 (5th Cir. 1997); United States v. Mitchell, 166 F.3d
748, 754 (5th Cir. 1999). Based upon the facts in this case, the district court did not clearly err in
applying the U.S.S.G. § 2K2.1(b)(5) increase.
Davis next argues that his three prior state robbery convictions should be treated as a
single conviction for the purposes of calculating his criminal history score and base offense level
because Davis was sentenced for all three crimes at the same time. Davis also argues that the
robberies were committed to achieve the common goal of supporting Davis’ drug habit. Again,
we disagree with Davis’ argument.
Davis committed one robbery on February 21, 2001 and two robberies on February 28,
2001. Further, though the three robberies may have shared a common motive, that is not
sufficient evidence to consider the offenses related under U.S.S.G. § 4A1.2(a)(2) for the purposes
of calculating Davis’ criminal history score. See United States v. Robinson, 187 F.3d 516, 519
(5th Cir. 1999). Thus, the district court properly relied on the Presentencing Report and did not
clearly err in finding that no functional consolidation of the offenses had occurred in the state
court. See Mitchell, 166 F.3d at 754; Buford v. United States, 532 U.S. 59, 64 (2001).
For the foregoing reasons, we uphold the sentence and conviction. AFFIRMED.
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