United States v. McDonnell

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 12, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20639
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMAN ALAN MCDONNELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-716-ALL
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Norman Alan McDonnell appeals the sentence imposed following
his guilty-plea conviction of being a felon in possession of
firearms, in violation of 18 U.S.C. § 922(g)(1). McDonnell first
argues that the district court erred in determining that his
offense level should be increased pursuant to U.S.S.G.
§ 2K2.1(c) on the ground that he possessed a firearm in
connection with commission of the offense of intent to distribute
methamphetamine. Given the close proximity of the .22 caliber

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Remington rifle to the methamphetamine laboratory maintained by
McDonnell, as indicated by the presentence report (PSR) adopted
by the district court, McDonnell has failed to show that the
district court erred in applying U.S.S.G. § 2K2.1(c). See United
States v. Condren, 18 F.3d 1190, 1197-98 (5th Cir. 1994); United
States v. Hernandez, No. 91-8249 (5th Cir. Feb. 26, 1992)
(unpublished).
In connection with his argument regarding the application
of U.S.S.G. § 2K2.1(c), McDonnell challenges the fact-finding
procedure used by the district court. McDonnell contends that
where a defendant objects to the PSR’s factual recitations or
to the PSR’s application of the Sentencing Guidelines, the
Government must offer evidence that proves the PSR’s disputed
facts or the PSR’s application of the Sentencing Guidelines.
McDonnell concedes that his challenge to the district court’s
fact-finding procedures is foreclosed by United States v. Reyna,
130 F.3d 104, 112 (5th Cir. 1997), but he raises the issue to
preserve it for Supreme Court review.
In Reyna “the district court considered the facts set out
in the PSR as well as the contrary facts proffered by Reyna,
and found that the PSR was more reliable.” Id. This court
determined that the district court had thus fulfilled the
requirement to resolve specifically disputed issues of fact if
it intends to use such facts as a basis for sentencing. Id.
Reyna imposes no requirement that the Government come forward

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with evidence at sentencing. See id. McDonnell’s argument is
foreclosed.
McDonnell also argues that a conflict exists between the
district court’s oral pronouncement of sentence and the written
judgment because the written judgment contains a condition of
supervised release prohibiting the possession of a dangerous
weapon, but at the sentencing hearing, the court did not
mention this prohibition. For the reasons outlined in United
States v. Torres-Aguilar, 352 F.3d 934, 936-38 (5th Cir. 2003),
we conclude that the district court’s omission of the dangerous-
weapon prohibition during the oral pronouncement of sentence did
not create a conflict with the sentence set forth in the
judgment.
McDonnell’s sentence is AFFIRMED.

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