United States v. Davis ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-31303
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DAVIS,
Defendant-Appellant.
____________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(00-CR-41-ALL)
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August 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Having pleaded guilty to being a felon in possession of a
firearm, Robert Davis appeals his sentence. He contends the
district court erred by increasing his offense level by four
levels, pursuant to U.S.S.G. § 2K2.1(b)(5) (use or possession of
firearm in connection with another felony offense), because he had
distributed a falsely represented controlled substance while
possessing a firearm, a felony offense under Louisiana law. See
LA. REV. STAT. ANN. 40:971.1. Davis maintains his conduct did not
*
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this opinion should not be published and is not precedent except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.
constitute a violation of that statute. We do not decide this
issue because the district court's error, if any, was harmless.
A sentence will be vacated only if it was imposed in violation
of law, if the guidelines were incorrectly applied, or if the
sentence is outside the guideline range and is unreasonable. E.g.,
United States v. Cabral-Castillo, 35 F.3d 182, 186 (5th Cir. 1994),
cert. denied, 513 U.S. 1175 (1995). When a district court has
misapplied the guidelines, remand is appropriate unless we
conclude, based upon “the record as a whole, that the error was
harmless, i.e., that the error did not affect the district court's
selection of the sentence imposed”. Williams v. United States, 503
U.S. 193, 203 (1992).
Davis admitted taking a pistol from the lap of one of the
victims, pointing it at the victim, and attempting to pull the
trigger. This conduct constituted attempted second-degree murder
under Louisiana law and would be punished as a felony. See LA. REV.
STAT. ANN. 14:27D(1), 14:30.1B; see also State v. Musgrove, 774 So.
2d 1155, 1159 (La. App. 2d Cir. 2000). We agree with the
Government that the district court could have imposed the §
2K2.1(b)(5) four-level increase on the alternative basis that Davis
used or possessed the firearm in connection with an attempted
second-degree murder. See U.S.S.G. § 2K2.1 comment. (n.7)
(defining “felony offense” as “any offense (federal, state, or
local) punishable by imprisonment for a term exceeding one year,
2
whether or not a criminal charge was brought, or conviction
obtained”). Therefore, any error in imposing the increase on the
basis of a violation of the Louisiana statute prohibiting false
representation of a controlled substance was harmless.
AFFIRMED
3