United States v. Pertile ( 2023 )

Case: 22-50839 Document: 00516899064 Page: 1 Date Filed: 09/18/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-50839 September 18, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dustin Michael Pertile,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-91-1
______________________________
Before Stewart, Southwick, and Engelhardt, Circuit Judges.
Per Curiam: *
Dustin Michael Pertile pled guilty to possession of a firearm by a felon.
The district court sentenced him to 96 months in prison. He now appeals his
sentence.
Pertile argues that the district court erred by applying an enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm in connection
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50839 Document: 00516899064 Page: 2 Date Filed: 09/18/2023
No. 22-50839
with another felony offense. Because Pertile did not object to this
enhancement in the district court, our review is for plain error. See United
States v. Buendia, 73 F.4th 336, 339 (5th Cir. 2023). To demonstrate plain
error, Pertile must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct
the error only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation marks, brackets, and
citation omitted).
The record as a whole supports a conclusion that Pertile possessed a
firearm in close proximity to drug paraphernalia and that he was engaged in
the felony offense of drug distribution. Thus, the court did not commit clear
or obvious error by applying the enhancement. See § 2K2.1(b)(6)(B),
comment (n.14(B)); see also United States v. Bass, 996 F.3d 729, 742 (5th Cir.
2021).
AFFIRMED.
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