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United States v. Noble, 03-40116 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 03-40116 Visitors: 29
Filed: Aug. 13, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 13, 2003 Charles R. Fulbruge III Clerk No. 03-40116 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GERALD THOMAS NOBLE, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:02-CR-38-1 Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges. PER CURIAM:* Gerald Thomas Noble appeals his sente
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                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                      August 13, 2003

                                                               Charles R. Fulbruge III
                                                                       Clerk
                            No. 03-40116
                          Summary Calendar



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

          versus


     GERALD THOMAS NOBLE,

                                              Defendant-Appellant.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 6:02-CR-38-1



Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Gerald Thomas Noble appeals his sentence following his guilty-

plea conviction for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). Noble argues that the district

court erred in increasing his base offense level by four levels

pursuant to U.S.S.G. § 2K2.1(b)(5).

     Section   2K2.1(b)(5)   provides   for   a   four-level    sentencing


     *
      Pursuan t 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opinion should not be published and is not precedent except under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.
increase “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense . . . .”       The

district court did not err in applying the four-point adjustment in

the instant case.

     Noble possessed the firearms in question during his commission

of the felony offense of possession of a controlled substance, and

could have used those firearms to facilitate his possession of that

controlled substance.      See United States v. Armsted, 
114 F.3d 504
,

511 (5th Cir. 1997).       Noble purchased the firearms from the same

person who supplied him with the controlled substance, and the

firearms were clearly readily available to him to protect his drug

possession.     Indeed, by Noble’s own admission, he purchased at

least   one   of   the   firearms–a   short-barreled   shotgun–precisely

because it was easier to maneuver and to use in the cab of his

pickup truck, the very place where he possessed the controlled

substance.    See 
id. at 512;
see also United States v. Condren, 
18 F.3d 1190
, 1197 (5th Cir. 1994) (noting that the danger of violence

is undeniably increased where a firearm is possessed simultaneously

with illegal drugs).       The firearms Noble possessed were found in

close physical proximity to the drugs he then possessed and were

readily available to him to protect his drug possession.       Nor is it

of any import that the quantity of drugs Noble possessed was

consistent with personal consumption.        “[I]t would be more than

reasonable to infer that [Noble] possessed the firearm[s] in order


                                      2
to protect even the small amount of drugs kept, or intended, for

his personal use.”      Condren at 1199.   The firearms were thus

possessed “in connection with” Noble’s offense of felony drug

possession within the meaning of U.S.S.G. § 2K2.1(b)(5).       See

Condren at 1199-2000.     Finally, Noble’s attempts to distinguish

Condren and Armsted are without merit, as is his argument that this

court should reject Condren in favor of the Ninth Circuit’s more

stringent approach in United States v. Routon, 
25 F.3d 815
(9th

Cir. 1994).   See Hogue v. Johnson, 
131 F.3d 466
, 491 (5th Cir.

1997).

                             AFFIRMED.




                                 3

Source:  CourtListener

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