Case: 10-40114 Document: 00511327925 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2010
                                     No. 10-40114
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

KERIANNE GREEN,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:08-CR-1411-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       In this appeal, we review Defendant–Appellant Kerianne Green’s sentence
resulting from a guilty plea conviction for knowingly and willfully making and
causing to be made a false statement in the records of a federally licensed
firearms dealer, pursuant to 18 U.S.C. §§ 924(a)(1)(A), (a)2.                 The evidence
showed that Green purchased five Beretta pistols in McAllen, Texas, which she
then smuggled into Mexico for her common-law spouse, Gabriel Gardea, and a
man identified in the presentence report as FNU LNU.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 10-40114

      Green contends that the district court erred in applying a four-level
enhancement         under   U.S. S ENTENCING G UIDELINES M ANUAL (U.S.S.G.)
§ 2K2.1(b)(5) (2010). Although Green has completed her sentence of 12 months
and a day, her case is not moot because she presently is serving her two-year
supervised release term. See United States v. Lares-Meraz, 

, 355
(5th Cir. 2006) (per curiam).
      Under § 2K2.1(b)(5), a four-level enhancement is applied if the defendant:
      (i)    transported, transferred, or otherwise disposed of two or more
             firearms to another individual, or received two or more
             firearms with the intent to transport, transfer, or otherwise
             dispose of firearms to another individual; and

      (ii)   knew or had reason to believe that such conduct would result
             in the transport, transfer, or disposal of a firearm to an
             individual—

             (I)      whose possession or receipt of the firearm would be unlawful;
                      or

             (II)     who intended to use or dispose of the firearm unlawfully.


§ 2K2.1, 2006 amend. cmt. n.13(A). The commentary to § 2K2.1 provides that
an individual whose possession or receipt of the firearm would be unlawful
“means an individual who (i) has a prior conviction for a crime of violence, a
controlled substance offense, or a misdemeanor crime of domestic violence; or (ii)
at the time of the offense was under a criminal justice sentence . . . .” § 2K2.1,
2006 amend. cmt. n.13(B).
      The district court’s application of the Sentencing Guidelines is reviewed
de novo, and its factual findings are reviewed for clear error. United States v.
Cisneros-Gutierrez, 

, 764 (5th Cir. 2008). This court upholds a
district court’s factual finding on clear error review so long as the enhancement
is plausible in light of the record as a whole. United States v. Gonzales, 

, 584 (5th Cir. 2006). The Government must prove sentencing enhancements


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                                 No. 10-40114

by a preponderance of the evidence. United States v. Trujillo, 

, 357
(5th Cir. 2007).
      Here, the Government concedes that the district court erred by imposing
the § 2K2.1(b)(5) enhancement because there was no evidence that either Gardea
or FNU LNU had a relevant criminal conviction or was under a criminal justice
sentence at the time of the offense. See § 2K2.1, 2006 amend. cmt. n.13(B). But
for this error, Green would have faced a Guideline imprisonment range of only
6 to 12 months in prison. See U.S.S.G. ch. 5, pt. A, sentencing table (2010). The
Government admits that there is no evidence that the district court would have
imposed the same sentence of 12 months and a day but for the misapplication
of the Guideline. Without proof that, but for the error, the district court would
have imposed the same sentence, the Government cannot meet its burden to
prove that the error is harmless. See United States v. Delgado-Martinez, 

, 753-54 (5th Cir. 2009). For the foregoing reasons, Green’s sentence is
vacated and we remand for resentencing.




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