United States v. Pena

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-40735
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN MICHAEL PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CR-15-ALL
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Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Ruben Michael Pena pleaded guilty to count 1 of a indictment
charging him with being a felon in possession of a firearm. Pena
was sentenced to a 96-month term of imprisonment and to a three-
year period of supervised release. Pena has appealed his
sentence.
Pena contends that the district court erred in considering
two prior sentences, imposed in 1984 and 1989, in determining his
criminal history category because those sentences were imposed
more than 15 years prior to the commencement of the instant
*
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this opinion should not be published and is not precedent except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. 05-40735
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offense. Pena also contends that one of those convictions should
have been regarded as a juvenile conviction for purposes of
U.S.S.G. § 4A1.2(d).
Pena does not dispute that he was tried as an adult for the
1984 offense. See § 4A1.2(d)(1). Because the 1984 conviction
resulted in Pena being incarcerated within the 15-year period,
the district court properly assigned the sentence three criminal
history points. See § 4A1.2(e)(1); United States v. Arnold, 213
F.3d 894, 895–96 (5th Cir. 2000); United States v. Ybarra, 70
F.3d 362, 366–67 (5th Cir. 1995); United States v. Gipson, 46
F.3d 472, 475 (5th Cir. 1995). Because the sentence for the 1989
conviction was “imposed” within 15 years of the date of the
instant offense, the district court also properly assigned that
sentence three criminal history points. See Arnold, 213 F.3d at
895; § 4A1.2(e)(1).
Pena contends also that the district court erred in
assigning criminal history points for the 1989 felony conviction
and for a 1992 felony conviction because those convictions were a
necessary predicate for his conviction of being a felon in
possession of a firearm and affected the determination of his
offense-level under U.S.S.G. § 2K2.1(a)(2). He argues that
consideration of these felony convictions in determining his
criminal history category constituted improper double counting.
In United States v. Hawkins, 69 F.3d 11, 14–15 (5th Cir. 1995),
we held that the Guidelines permit the district court to consider
No. 05-40735
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a defendant’s prior felony convictions in calculating both his
offense level under § 2K2.1(a)(1) and his criminal history
category. See § 2K2.1, comment. (n.12). Pena’s double counting
argument is without merit.
Pena contends that the district court violated United States
v. Booker, 543 U.S. 220 (2005), by making fact findings with
respect to his endangerment of a child, drug use, and possession
of a weapon in a family household. Because Pena was sentenced
after the Supreme Court issued its opinion in Booker, however,
Pena was sentenced pursuant to advisory Sentencing Guidelines.
Accordingly, the constitutional holdings of Booker, Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530
U.S. 466 (2000), are not applicable. See United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005); United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Pena contends that the district court erred in assigning
four levels under § 2K2.1(b)(5) because the evidence did not show
that the firearm, which was found during a search of his
residence, facilitated and made more dangerous another crime.
Section 2K2.1(b)(5) provides, in pertinent part,
If the defendant used or possessed any firearm or
ammunition in connection with another felony offense;
or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another
felony offense, increase [the defendant’s offense
level] by 4 levels.
No. 05-40735
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§ 2K2.1(b)(5). The enhancement should be assessed “‘even if the
defendant only possesses a firearm in connection with any other
felony.’” United States v. Washington, 340 F.3d 222, 231 (5th
Cir. 2003) (quoting United States v. Condren, 18 F.3d 1190, 1196
(5th Cir. 1994)). A firearm is possessed “in connection with
another felony offense” if the firearm “may have facilitated or
made more dangerous the other felony offense.” United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
Pena was charged by state authorities with the offense of
possession of a controlled substance with intent to
deliver—habitual, based on two controlled purchases by a
confidential informant from Pena of small quantities of cocaine.
These purchases led to the issuance of a search warrant for
Pena’s residence, which resulted in the instant firearms
conviction. The firearm, trace amounts of cocaine, a small
metal spoon, a large amount of currency, and scales were found in
the bathroom of the residence. Four small children resided in
the house. At the time the presentence report was prepared, Pena
was charged but not yet indicted for child endangerment. Based
on these facts, the district court could reasonably infer that
the firearm was possessed in connection with either the
controlled substance offense or the child-endangerment offense.
The district court did not clearly err in enhancing Pena’s
offense level pursuant to § 2K2.1(b)(5). See United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); Villegas, 404 F.3d
No. 05-40735
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at 363-64; Washington, 340 F.3d at 231; Condren, 18 F.3d at 1198-
1200.
Pena contends that the district court should have departed
downward from the guideline imprisonment range. This court
ordinarily lacks jurisdiction to review a district court’s
refusal to depart downwardly. United States v. Hernandez, 457
F.3d 416, 424 (5th Cir. 2006). The record does not support
Pena’s contention that the district court was under the erroneous
belief that it lacked the authority to grant a downward
departure. See id. at 424 n.5. The district court’s judgment is
AFFIRMED.