United States v. Owens

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10254

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DAMONI OWENS,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-37-1

Before WIENER, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant pleaded guilty to possessing a firearm as a felon,
and the district court imposed a within-Guidelines sentence. Defendant-
Appellant appeals only the application of a four-level enhancement under
Section 2K2.1(b)(6)(B) of the Sentencing Guidelines (“Section 2K2.1”), which
applies “[i]f the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). The district

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 1, 2020

Lyle W. Cayce
Clerk
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No. 19-10254
2
court applied the enhancement based on Defendant-Appellant’s alleged
participation in the burglary in which the firearm giving rise to his conviction
was stolen. Defendant-Appellant objected, arguing that there was no evidence
that he (as opposed to his co-conspirator) took the gun during the burglary. On
appeal, he argues that when the felony justifying the application of the
enhancement in question is a burglary, the enhancement only applies if the
defendant himself “finds and takes a firearm.” See id. cmt. n.14(B).
The parties dispute whether the district court made an explicit factual
determination regarding Defendant-Appellant’s participation in the burglary.
Having reviewed the record, we conclude that it is unclear what factual
determination the district court reached.
At the sentencing hearing, the government responded to Defendant-
Appellant’s objection that there was insufficient evidence that he was “party”
to the burglary by arguing that Defendant-Appellant himself took the gun. The
district court interrupted the government’s argument to comment that the
evidence could also show that Defendant-Appellant “was participating with
someone who stole [the handgun], cooperated with someone, participating,
conspiring with.” The government agreed, but continued to insist, “I think it’s
more probable than not [that Defendant-Appellant] stole it, and a big part of it
is because I just don’t find him to be credible. . . .”
After hearing the parties’ arguments, the district court found that the
enhancement applied. In making that finding, the court opined:
My finding is that the specific offense characteristic set out in
Paragraph 25
1
of the third addendum is appropriate because it
appears, by a preponderance of the evidence, that the defendant,
along with Vernon Williams, were in the business of burglarizing

1
Paragraph 25 states: “The defendant and Williams stole the firearm listed in the
offense of conviction during a Burglary of a Habitation on August 18, 2014. USSG
§ 2K2.1(b)(6)(B) provides for a 4 level increase if the defendant used or possessed any firearm
or ammunition in connection with another felony offense.”
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No. 19-10254
3
places in series and that the information contained in the original
presentence report at Paragraphs 53 and 54 make it clear that
these two individuals were engaged in common activity of
burglarizing places, one on August 18 at Paragraph 53 that is
misnumbered in the third addendum as Paragraph 54, and in
actual Paragraph 54, there is in the original presentence report
additional information supporting the fact that [the co-defendant]
and the defendant were engaged in this behavior together, and it’s
clear that [Defendant-Appellant] was aware of the conduct of his
co -defendant and is properly chargeable with what he did as well
because they were involved in a common endeavor and, also, for
the reasons articulated by [the prosecutor] on behalf of the
government. So the objection to the inclusion of the four points in
Paragraph 25 of the third addendum is overruled.
It is reasonable, given the government’s argument, to conclude that the district
court found that Defendant-Appellant himself took the handgun. But it is also
reasonable to read the same language and conclude that the district court
found only that Defendant-Appellant was “properly chargeable” with the
conduct of his associate, who himself stole the gun.
We are disinclined to reach a determination regarding the legality of
applying the relevant enhancement in situations like these absent more clarity
from the district court, which is charged with making findings of fact. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(explaining that a district court’s interpretation or application of the
Sentencing Guidelines is reviewed de novo, while its factual findings are
reviewed for clear error); see also United States v. Sarasti, 869 F.2d 805, 807
(5th Cir. 1989) (“Credibility determinations are peculiarly within the province
of the trier-of-fact, and we will not disturb the sentencing judge’s findings.”).
We therefore VACATE Defendant-Appellant’s sentence and REMAND this
case for the limited purposes of (1) factfinding regarding how the firearm in
question came to be in Defendant-Appellant’s possession; and (2) resentencing.
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