USA v. Tena, No. 08-50622 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-50622 Summary Calendar July 24, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. OSCAR ELOY TENA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:08-CR-4-1 Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Oscar Eloy Tena pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 84 months in prison. He argues that the district court erred in applying a four-level upward adjustment pursuant to U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with another felony offense, namely, the offense of unlawfully carrying a weapon on licensed premises, in violation of T EXAS P ENAL C ODE A NN. § 46.02. Tena asserts that the offense of unlawfully carrying a weapon was not * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 08-50622 sufficiently distinct from the offense of being a felon in possession of a firearm so as to permit the enhancement. After United States v. Booker, 543 U.S. 220 (2005), this court continues to review a district court s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). In determining whether a guideline enhancement applies, a district court is allowed to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The Sentencing Guidelines provide for a four-level increase if the defendant used or possessed any firearm or ammunition in connection with another felony offense. § 2K2.1(b)(6). Another felony offense is defined as any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained. § 2K2.1, comment. (n. 14)(C)). A person violates § 46.02(a) if he intentionally, knowingly, or recklessly carries on or about his person a weapon. An offense under this section is a felony if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages. § 46.02(c). Tena does not dispute that he violated § 46.02(c). Here, Tena s mere possession of the firearm would not itself implicate § 46.02(c). Rather, Tena also had to carry or possess the firearm on licensed premises, an act that goes beyond mere possession. See United States v. Kuban, 94 F.3d 971, 975-76 (5th Cir. 1996). Thus, the enhancement was properly applied. See id. at 976; see also United States v. Armstead, 114 F.3d 504, 512-13 (5th Cir. 1997). We also agree with the Government s alternative argument that Tena s conduct of waving the loaded firearm at a crowd of people warranted the 2 No. 08-50622 imposition of the enhancement. See Kuban, 94 F.3d at 976; United States v. Le, 512 F.3d 128, 134-135 (5th Cir. 2007); § 2K2.1, comment. (n.14(C)). AFFIRMED. 3
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