United States of America v. Douglas Atherton

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0428n.06
No. 13-5276
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS ATHERTON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY
BEFORE: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge.
PER CURIAM. Douglas Atherton, a federal prisoner, appeals through counsel the 71-
month sentence imposed following his guilty plea to charges of possession of a firearm while
under a domestic violence order and possession of a firearm by a convicted felon.
A relative of Atherton’s called the police to report that Atherton had been making threats
against his estranged wife and that he had a gun. The police found Atherton passed out in a
parked vehicle. He had a pistol in his back pocket. Atherton was convicted in state court of
carrying a concealed deadly weapon and first-degree stalking. He was sentenced to three years
of imprisonment. After Atherton’s guilty plea to the above federal charges, a presentence report
was prepared that calculated a guidelines sentencing range of 57 to 71 months of imprisonment,
based in part on a four-level enhancement to the offense level under U.S.S.G. § 2K2.1(b)(6)(B)
*The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.

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No. 13-5276, United States v. Atherton
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for possessing the firearm in connection with another felony offense. The district court
sentenced Atherton to 71 months, to run concurrently with his state sentence. On appeal,
Atherton argues that the enhancement for possession of a firearm in connection with another
felony offense was erroneous.
Atherton admits that he did not raise this objection below. Therefore, the application of
the enhancement is reviewed for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th
Cir. 2008) (en banc). No plain error occurred. Atherton relies on United States v. Sanders,
162 F.3d 396, 400 (6th Cir. 1998), for the proposition that a felony committed at the same time
and based on the same conduct is not “another felony” for purposes of the § 2K2.1(b)(6)(B)
enhancement. However, in doing so, he misrepresents that he was only convicted in state court
of carrying a concealed deadly weapon, based on the same weapon possession that led to his
federal convictions. He neglects to mention his first-degree stalking conviction, which was
clearly not based on the same conduct as his federal convictions, and was therefore properly the
basis for the enhancement.
Accordingly, the district court’s judgment is affirmed.

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