United States v. Anderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10180
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRENT ANDERSON,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-247-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Brent Anderson appeals the sentence imposed following his guilty plea
conviction for being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He argues that the district court plainly erred in
applying a U.S.S.G. § 3C1.2 enhancement for reckless endangerment during
his flight from law enforcement after applying a U.S.S.G. § 2K2.1 enhancement
for possessing a firearm in connection with another felony offense, namely, the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 24, 2020

Lyle W. Cayce
Clerk
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No. 19-10180
2
state felony offense of evading arrest with a vehicle. To apply both
enhancements, Anderson argues, constituted impermissible double counting
pursuant to application note one to § 3C1.2. Anderson alternatively argues
that the district court plainly erred in applying the § 2K2.1 enhancement
because he did not possess the firearm “in connection with” his vehicular flight
from law enforcement.
Because Anderson did not object to the enhancements before the district
court, our review is for plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009). To show plain error, Anderson has to show that an error occurred,
that the error was clear or obvious, and that the error affected his substantial
rights. See id. If he makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
With regard to the § 2K2.1(b)(6)(B) enhancement, Anderson correctly
concedes that the issue whether he possessed the firearm “in connection with”
his evading arrest offense is a question of fact that was capable of resolution
by the district court and thus cannot constitute plain error. See United States
v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010); United States v. Lopez, 923 F.2d
47, 50 (5th Cir. 1991). Moreover, on this record, we conclude that Anderson
has failed to show that the district court plainly erred in applying both
enhancements in calculating his sentence. See Puckett, 556 U.S. at 135; United
States v. Gillyard, 261 F.3d 506, 511-12 (5th Cir. 2001). Notably, even if we
were to conclude that Anderson had shown error here, we could not, given this
circuit’s range of authority in cases addressing double counting guidelines
issues, say that the error was clear or obvious. See United States v. Anthony,
755 F. App’x 364, 367 (5th Cir. 2018), cert. denied, 139 S. Ct. 1576 (2019);
United States v. Bocanegra-Rodriguez, 336 F. App’x 430, 430-31 (5th Cir.
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No. 19-10180
3
2009); Gillyard, 261 F.3d at 511-12; United States v. Cabral-Castillo, 35 F.3d
182, 188-89 & n.8 (5th Cir. 1994). In light of this conclusion, we do not reach
prongs three and four of the plain error analysis. See Puckett, 556 U.S. at 135.
AFFIRMED.
Case: 19-10180 Document: 00515320121 Page: 3 Date Filed: 02/24/2020