United States v. Dordain

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 12, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30776
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
GLENN DORDAIN
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Glenn Dordain challenges the district court’s imposition of an
upward adjustment for possession of a firearm in connection with a
felony offense under U.S.S.G. § 2K2.1(b)(5). We vacate and remand
for resentencing.
I
Without the benefit of a plea agreement, Glenn Dordain pled
guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and one count of possession of
*
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should not be published and is not precedent except under the limited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.
less than ten grams of heroin with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). Dordain signed a stipulation
in which he conceded that the government would have proven that
Dordain possessed two firearms, that heroin was found in his
toilet, and that he purchased the firearms “on the street . . . for
protection.” Dordain confirmed these facts under oath at
rearraignment.
The presentece report assigned Dordain a base offense level of
20 and a three-level downward adjustment for acceptance of
responsibility. The PSR recommended a four-level adjustment under
U.S.S.G. § 2K2.1(b)(5) because Dordain possessed a firearm “in
connection with” a felony offense––here, the possession of heroin.
Dordain objected to the PSR, arguing that the four-level adjustment
was improper under Blakely v. Washington1 because the facts
underlying the adjustment were neither found by a jury nor admitted
by him.
At sentencing, Dordain again admitted both possession of a
firearm and possession of heroin. He argued that the adjustment
was inappropriate because the admitted-to facts were insufficient
to show a nexus between the firearms and the heroin, as is
necessary to impose the § 2K2.1(b)(5) adjustment. The district
1
542 U.S. 296 (2004).
2
court rejected Dordain’s objection. Sentencing Dordain before the
Supreme Court decided United States v. Booker, the district court
concluded that, even if Blakely applied to the federal sentencing
guidelines, the facts admitted to by Dordain were sufficient to
impose the adjustment. The court sentenced Dordain to 87 months
imprisonment (a level exceeding the guideline range absent the
challenged enhancement) and a three-year term of supervised
release. Dordain filed a timely notice of appeal.
II
Dordain challenges his sentence on appeal, contending that his
admissions are insufficient to impose the adjustment under §
2K2.1(b)(5) because he never admitted that there was a connection
between possession of the firearm and possession of the heroin.
Further, Dordain argues that his admission to purchasing the gun
for “protection” is insufficient to show the needed connection.
The government argues that the admissions were sufficient and,
regardless, that any error was harmless.
The Supreme Court held in United States v. Booker that “[a]ny
fact (other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
3
by the defendant or proved to a jury beyond a reasonable doubt.”2
Under § 2K2.1(b)(5), a four-level adjustment is proper if the
defendant “used or possessed any firearm or ammunition in
connection with a felony offense.”3 A district court’s
determination of the “in connection with” requirement is a factual
finding.4
Although admitted facts will not give rise to a valid Booker
claim,5 the defendant must admit all facts necessary to a sentence
enhancement.6 Section 2K2.1(b)(5) requires proof of three things:
(1) that the defendant possessed a firearm, (2) that the defendant
committed a felony offense, and (3) that the defendant possessed
the firearm “in connection with” the commission of the felony
offense. Here, Dordain admitted to the first two, but he did not
admit that he possessed the firearm in connection with his
possession of heroin.
Further, Dordain’s statement that he possessed the firearm for
“protection” is insufficient, by itself, to compel a conclusion
that he possessed the firearm “in connection with” the possession
2
543 U.S. 220 (2005).
3
U.S. SENTENCING GUIDELINES § 2K2.1(b)(5).
4
United States v. Mitchell, 166 F.3d 748, 754 n.24 (5th Cir. 1999); United
States v. Condren, 18 F.3d 1190, 1199-1200 (5th Cir. 1994).
5
United States v. Holmes, 406 F.3d 337, 364 (5th Cir. 2005).
6
See Booker, 543 U.S. at 244.
4
of heroin. A person can possess a firearm for a variety of
reasons, ranging from self-protection to hunting enthusiast to
facilitating drug-related crimes. Perhaps our conclusion would be
different if the guns and drugs are found in temporal and spatial
proximity, but that is not the case here. Dordain admitted only
the he kept a firearm under his mattress, and the officers
searching his apartment found two weapons there. The drugs,
rather, were found in the toilet. There is no indication that the
guns were facilitating Dordain’s commission of the heroin
possession offense. The district court inferred the “in connection
with” requirement, and such inference is error under Booker.
III
The government concedes that Dordain preserved his Booker
claim by objecting at the district court and citing Blakely.7 A
sentence based on a preserved Booker error should be vacated unless
the error is harmless.8 Here, the government cannot show beyond a
reasonable doubt “that the district court would have imposed the
same sentence absent the error.”9 We have held that the government
can show harmless error in two circumstances: (1) when the district
7
See United States v. Saldana, 427 F.3d 298, 313-14 (5th Cir. 2005).
8
United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005); United States
v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
9
Pineiro, 410 F.3d at 286-87.
5
court specifically says that it would not have given the defendant
a lower sentence even if it were not bound by mandatory guidelines;
and (2) when the district court refuses to allow a defendant to
serve his federal and state sentences concurrently.10 Neither
scenario is present in this case. Nor does anything in this record
suffice to establish harmlessness.
IV
Accordingly, we VACATE Doradin’s sentence and REMAND to the
district court for resentencing.
10
United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005).
6