Filed: Jul. 03, 2012
Latest Update: Feb. 12, 2020
Summary: Case: 11-30484 Document: 00511909842 Page: 1 Date Filed: 07/03/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 3, 2012 No. 11-30484 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. BRANDON BANKS, also known as Brandon T. Banks, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana Before REAVLEY, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* Brandon Bank
Summary: Case: 11-30484 Document: 00511909842 Page: 1 Date Filed: 07/03/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 3, 2012 No. 11-30484 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. BRANDON BANKS, also known as Brandon T. Banks, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana Before REAVLEY, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* Brandon Banks..
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Case: 11-30484 Document: 00511909842 Page: 1 Date Filed: 07/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 3, 2012
No. 11-30484 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRANDON BANKS, also known as Brandon T. Banks,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
Brandon Banks appeals the two-level enhancement under U.S.S.G. §
2A2.2(b)(5) for violating a Louisiana state court protection order. Banks asserts
that the district court erred in applying the enhancement to his sentence for
assaulting a federal officer because the state order did not pertain to the officer.
For the following reasons, we VACATE AND REMAND.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-30484 Document: 00511909842 Page: 2 Date Filed: 07/03/2012
No. 11-30484
FACTS AND PROCEDURAL HISTORY
On February 28, 2007, federal ATF and DEA agents on surveillance in
New Orleans approached Brandon Banks. Banks, who was in possession of a
firearm, ran away while holding the firearm with his right hand with the barrel
pointed under his left arm toward Special Agent Karen Evanoski. Banks was
later apprehended while hiding under a house. After being arrested, Banks
indicated that he knew he should not be in possession of a firearm because he
had an order of protection filed against him from Orleans Parish. Subsequently,
Banks pleaded guilty to the single-count indictment of assaulting a federal
officer with a dangerous weapon in violation of Title 18, Section 111 of the
United States Code.
The United States Office of Probation calculated Banks’ guideline
sentencing range at 57-71 months of imprisonment. Because the offense
involved a violation of a court order of protection, Probation recommended that
the offense level be increased by two pursuant to U.S.S.G. section 2A2.2(b)(5).1
STANDARD OF REVIEW
This court reviews a district court’s guidelines interpretations de novo and
reviews the district court’s findings of fact for clear error. United States v. Le,
512 F.3d 128, 134 (5th Cir. 2007). To determine whether an enhancement
applies, a district court may draw reasonable inferences from the facts, and
those inferences are factual findings that are reviewed for clear error. United
States v. Rodriguez,
897 F.2d 1324, 1325 (5th Cir. 1990).
If Banks had failed to raise his claim of error, then we would be limited to
plain error review. United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995).2
1
Probation also recommended other enhancements, which are not at issue here.
2
Even if we separated the possession of a firearm portion and analyzed it under plain
error review, Banks would still prevail. However, as discussed later herein, there is no basis
under Louisiana law for separating the possession of a firearm from the violation of the
2
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No. 11-30484
But Banks did raise his claim of error, thus clear error applies. Banks’ written
objection stated: “The defendant objects to paragraph 13 of the PSR, which
applies a two-level enhancement for violation of an order of protection. Defense
counsel maintains the defendant was not prohibited from being in contact with
Agent Evanoski; therefore, there was no violation of a protection order.” The
Probation Officer’s Response said:
Pursuant to 18 U.S.C. § 922(g)(8), it shall be unlawful for any
person who is subject to a court order that restrains such person
from harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging in
other conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner or child, to possess in or affecting
commerce any firearm or ammunition. At the time the instant
offense was committed, the defendant was under two separate
orders of protection. On November 16, 2006, an Order of Protection
was filed in the Orleans Parish Criminal District Court, New
Orleans, Louisiana, Case No. M 470-715, which was in effect
through April 16, 2007. On March 8, 2007, an Order of Protection
was filed in the Orleans Parish Criminal District Court, New
Orleans, Louisiana, Case No. 475-460, which was in effect through
September 1, 2007. Both orders of protection ordered the defendant
not abuse, harass, stalk, follow, or threaten the alleged victim.
The defendant, being in possession of a firearm during the
commission of the instant offense, was in violation of both Orders of
Protection. The fact that the defendant was not prohibited from
being in contact with Agent Evanoski is irrelevant, as his contact
with Agent Evanoski is not the basis for the violation of the Order
of Protection. His possession of a firearm is the basis for the
violation of the Orders of Protection. Therefore, a two-level
enhancement is applicable. This matter remains unresolved.
protective order. The dissent takes issue with the discussion of Louisiana law, but that
discussion is necessary to determine whether Banks could even have been in violation of the
state protective order. Based on the applicable law, discussed herein, Banks would only have
been in violation of the state protective order for possessing a firearm if he had pointed the
firearm at Agent Evanoski AND Evanoski was the party protected by the protective order.
3
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Banks argued in the district court, as he argues here, that the district
court erred in applying the two-level enhancement because the order of
protection was not violated. Banks said in his objection that the order did not
prohibit him from having contact with Agent Evanoski, but, as Probation’s
response indicated, the possession of a firearm was the basis for the violation of
the order. Banks makes one argument: That the trial court erred in applying
the two-level enhancement because the order of protection was not violated. The
district court was advised of all grounds Banks may have for opposing
application of the enhancement at the point that Banks objected and Probation
responded.
DISCUSSION
I. Whether the district court erred when it enhanced Banks’ sentence
under U.S.S.G. §2A2.2(b)(5) because his assault offense involved
violation of a court protection order.
Banks asserts that the district court erred in applying the enhancement
for violation of an order of protection. Section 2A2.2(b)(5) says, “[i]f the offense
involved the violation of a court protection order, increase by 2 levels.” The
Government asserts that Banks violated the order of protection pursuant to 18
U.S.C. § 922, which says, in relevant part:
(g) It shall be unlawful for any person –
...
(8) who is subject to a court order that –
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible
threat to the physical safety of such intimate partner or child;
or
4
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No. 11-30484
(ii) by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner
or child that would reasonably be expected to cause bodily
injury; or
...
to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g)(8).
Section 922 section clearly sets out that it is unlawful for a person subject
to a protective order to possess a firearm. The issue is whether violating section
922 is a violation of the protective order, thus allowing an enhancement under
2A2.2, or whether it is just a separate violation under federal law.3
The parties cite United States v. Azure, 571 F.3d 769, 771 (8th Cir. 2009),
as the only federal case to have applied the enhancement for violating a
protective order. However, as correctly noted by Banks, the defendant in Azure
was involved in a physical altercation with the person who was the beneficiary
of the tribal protective order. The Government asserts that Azure provides no
support for Banks because he “fails to mention that Azure also assaulted a
3
Therefore the dissent’s discussion of whether the order is ambiguous is inapplicable.
Further, the dissent’s recitation of law regarding the adoption of the PSR without objection
is also inapplicable as Banks did object. The district court may adopt the facts contained in a
PSR without further inquiry if the facts have an adequate basis with sufficient indicia of
reliability and the defendant does not rebut the evidence or otherwise demonstrate it is
unreliable. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Confronted with
an objection to the findings in the PSR, the party seeking an adjustment in the base offense
level, the Government, must prove by a preponderance of the evidence that the adjustment is
warranted. See United States v. Patterson,
962 F.2d 409, 415 (5th Cir. 1992); United States
v. Elwood,
999 F.2d 814, 817 (5th Cir. 1993). However, "[b]ald, conclusionary statements do
not acquire the patina of reliability by mere inclusion in the PSR."
Elwood, 999 F.2d at
817-818.
The findings in the PSR do not have an adequate basis with a sufficient indicia of
reliability. They are merely bald, conclusionary statements that Banks had violated the state
order of protection.
5
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No. 11-30484
second individual in the same incident which resulted in his conviction.” But the
Government then admits that Azure pleaded guilty to assault in a single
criminal act which involved both the protected person and a second individual.
Azure supports the assertion that the enhancement applies when the assault
victim is the protected person.
The parties agree that the order of protection contained a recitation of
section 922. The Government essentially contends that this recitation
establishes a separate requirement for compliance with the state protective
order. Banks asserts that this notice is merely a recitation of federal law and
does not affect the terms of the order, “which were plainly intended to prevent
Mr. Banks from having contact with the person specifically named in the order.”
Further, Banks asserts that, on appeal, “the Government pursues the same
logical [sic] fallacy made by the probation officer: because it is a violation of
federal law to possess a gun while under a state protection order it is therefore
a violation of a state protection order to violate federal law by possessing a gun.”
The Government asserts that Banks’ own post-arrest statement and his
sworn factual basis confirm his understanding that possessing a gun was a
violation of the state protection order. We disagree. Banks merely said that he
knew he was not supposed to have a gun. Specifically, his factual basis said:
“Banks stated he knew he could not be in possession of a firearm because he had
an Order of Protection filed against him in state court.” This does not say that
he knew possessing a gun was a violation of the state protective order. This says
he knew he was not supposed to have a gun because he had an order of
protection filed against him.
Under the Louisiana “Protection from Family Violence Act,” the court may
grant any protective order “to bring about a cessation of abuse of a party, any
minor children, or any person alleged to be incompetent.” La. Rev. Stat. §
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No. 11-30484
46:2136(A).4 The Louisiana Criminal Code on “Domestic Violence Offenses”
provides that violation of a protective order is the “willful disobedience” of a
protective order. La. Rev. Stat. § 14:79. The violations set out in 14:79 only
refer to “the person protected by the protective order,” not to any unrelated,
uninvolved third party.5
As this is a state protective order, the only possible violation would be
under state law. The Government fails to provide any authority to indicate that
the assault on Agent Evanoski would be a violation of the protective order under
Louisiana law. Further, Azure is the only case applying the enhancement and
it involved a violation against the protected person. However, there are cases
involving a violation of a protective order for having a firearm that did not
involve a violation against the protected person where the enhancement was not
applied, but rather the defendant was charged with a separate violation. See
United States v. Banks, 339 F.3d 267 (5th Cir. 2003) (“Eric Banks was charged
4
For whatever reason, the dissent characterizes this as a citation to La. Rev. Stat. §
46:2135, dealing with temporary restraining orders. It clearly is not, although both sections
are part of the Protection from Family Violence Act and contain similar language. Also, the
dissent fails to offer any provision of either section addressing possession of a firearm.
Further, like the Government, the dissent fails to offer any authority whatsoever establishing
that any state court ever found Banks in violation of the state protective order. However, by
quoted language, the dissent effectively concedes that both sections apply only to the
petitioner, any minor children, or any person alleged to be an incompetent.
5
The dissent states: “Louisiana law recognizes prohibitions against a wide variety of
conduct not directly against the protected party and grants wide discretion to the court to
impose restrictions on defendants.” The dissent cites section 46:2136 and Francois v. Francois,
941 So. 2d 722, 726 (La. App. 2006), as authority. However, there is nothing in either section
46:2136 or Francois to support the proposition that any prohibitions extend beyond the
protected party, minor children and incompetents. Further, Francois established that
Louisiana courts have “wide discretion in the issuance of protective orders” while upholding
the extension of a protective order to include the requirement that Mr. Francois stay at least
100 yards away from his wife, who was the protected party.
7
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No. 11-30484
with five counts of possession of a firearm while subject to a restraining order in
violation of 18 U.S.C. § 922(g)(8).”).6
In the instant case, there is no evidence that Banks was ever found in
violation of the state order of protection. There is also no indication that he
could have been found in violation of the state order of protection for the assault
on Agent Evanoski, who was not the protected person under the order. The
Government has failed to provide any authority establishing that the recitation
on the state protective order providing notice of federal law prohibiting the
possession of a firearm while under an order of protection in any way constitutes
a separate state violation of the protective order. Rather, the recitation indicates
notice of a separate federal violation, as supported by applicable caselaw. The
Government could have properly pursued a violation of 18 U.S.C. § 922(g)(8) in
conjunction with its case for assault of the federal officer. However, there is no
basis for enhancing Banks’ sentence for violating an order of protection when
there is no authority establishing that the action constituted a violation of the
order.
CONCLUSION
For these reasons, we find that the district court clearly erred in finding
that Banks had violated the state order of protection. Further, the district court
erred in applying the two-level enhancement under section 2A2.2(b)(5).
Accordingly, we vacate the sentence and remand for resentencing.
VACATE AND REMAND.
6
This case is offered to establish that there is a separate federal violation under section
922(g)(8), which the dissent concedes would have been a proper charge here. “Despite their
shared surname, the defendant in Banks and the Banks in the instant appeal are only similar
in that they both violated § 922(g)(8) because they possessed firearms while under a protective
order.”
8
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No. 11-30484
HAYNES, Circuit Judge, dissenting:
I respectfully dissent. I would affirm the sentence.
A. Forfeiture of Banks’s Argument
First, I disagree with the standard of review applied. As the majority
opinion notes, Banks pled guilty to assaulting a federal agent with a weapon.
At the time of the offense, Banks was under a protective order (the “Order”),
which restricted him from, inter alia, abusing, harassing, stalking, following,
or threatening a particular person. The Order also included language from §
922(g) that makes it unlawful for any person subject to certain court orders to
possess a firearm.
The district court, therefore, applied a two-level enhancement to
Banks’s sentence pursuant to the aggravated assault Guideline, U.S.S.G. §
2A2.2(b)(5), which applies if the defendant violated a court order of protection
at the time of the offense. Banks objected to application of this Guideline
because he “was not prohibited [by the Order] from being in contact with [the
federal agent he assaulted]; therefore, there was no violation of a protective
order.” In response, the Probation Officer highlighted that the basis of
Banks’s sentencing enhancement was his “possession of a firearm,” not his
contact with the person protected by the Order. Despite making several other
objections to the PSR, Banks never revisited this point or indicated any issue
with the enhancement other than that the federal agent was not the victim
listed in the Order. This distinction makes a difference. As alluded to in the
Probation Officer’s response, there were alternate bases that could be
proffered for violating the Order: (1) that Banks not “abuse, harass, stalk,
follow, or threaten the alleged victim”; and (2) that Banks may not possess a
firearm. Banks only objected to the former.
9
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No. 11-30484
Banks’s generic objection to the district court’s application of §
2A2.2(b)(5) did not state the particular argument he now makes; accordingly,
it is forfeited, and we should review it only for plain error. See, e.g., United
States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). “A party must raise a
claim of error with the district court in such a manner so that the district
court may correct itself and thus, obviate the need for our review.”
Id.
(quoting United States v. Bullard,
13 F.3d 154, 156 (5th Cir. 1994)). In Krout,
the defendant argued on appeal that the trial court inappropriately applied
sentencing guidelines to implement consecutive, rather than concurrent,
sentences.
Id. at 1433-34. Though the defendant objected to consecutive
sentences at trial he did so based on a plea for leniency, and we held that an
“imprecise objection is insufficient to preserve the claimed error for review.”
Id. at 1434.
Similarly, in United States v. Chavez-Hernandez,
671 F.3d 494, 498-99
(5th Cir. 2012), we applied plain error review to a defendant’s argument on
appeal that his convicted conduct was not a “crime of violence.” We held that
plain error was the proper standard of review where the defendant made a
generic objection at trial that the sentencing enhancement should not apply
because, inter alia, the crime was not one of violence.
Id. at 498. Indeed, the
defendant’s objection was so “purely conclusional” that the district court could
not have “intuited that [he] . . . would be making an extended legal argument
against the enhancement.”
Id. at 499.
The Eighth Circuit’s decision in United States v. Montanye,
996 F.2d
190, 192 (8th Cir. 1993), provides another helpful analogy. The court there
applied plain error review to a defendant’s argument that the district court
erroneously applied a sentencing enhancement.
Id. The defendant initially
objected to the court’s attribution of 37.5 kilograms of methamphetamine for
the purposes of applying a Guideline offense level.
Id. That objection,
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however, was couched in the defendant’s argument that his laboratory did not
have the capacity to produce that quantity of meth. Id. On appeal, the
defendant argued that the district court erred in finding that the entire
production could be attributed to him because it was not “foreseeable” as
required under a conspiracy charge.
Id. Though both arguments questioned
whether the district court properly attributed the entire 37.5 kilogram
amount to the defendant, the Eighth Circuit split the “capacity” and
“foreseeability” issues on appeal and applied plain error to the latter because
it was not specifically raised to the district court.
Id.
Just like the defendant in Montanye’s overarching contention was
aimed at dispelling the quantity of drugs attributed to him, Banks’s
argument at sentencing was that he did not violate the Order by assaulting
someone other than the victim named in the protective order. That
argument, however, did not apprise the district court of the thrust of his
argument on appeal—that his possession of a firearm does not violate the
Order.
I, therefore, cannot agree with the majority opinion’s assertion that “the
district court was advised of all grounds Banks may have for opposing
application of the enhancement at the point that Banks objected and
Probation responded.” Banks’s sole argument below— that the trial court
erred in applying the enhancement because the agent was not the beneficiary
of the Order—was insufficient to apprise the district court of a potential
error. The firearm rationale was not explained until Probation issued its
response. From that point forward, Banks never articulated an objection to
the Probation Officer’s application of § 2A2.2(b)(5) based on his possession of
a firearm—the issue now on appeal. Nothing in Banks’s “objection gave any
indication of the sentencing error now claimed.” Krout, 66 F.3d at 1434.
Indeed, the objection did not even mention a firearm—the Probation Officer’s
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basis for application of § 2A2.2(b)(5). To the contrary, in his factual basis,
Banks admitted that he told the arresting officers that he was aware he could
not possess a firearm because he was under a state protective order.
Therefore, plain error review applies here.
B. The District Court Did Not Plainly Err
The Supreme Court has identified four requirements for reversing a
trial court based on plain error review: (1) “there must be an error or
defect—some sort of deviation from a legal rule—that has not been
intentionally relinquished or abandoned”; (2) “the legal error must be clear or
obvious, rather than subject to reasonable dispute”; (3) “the error must have
affected the appellant’s substantial rights”; and (4) “if the above three prongs
are satisfied, the court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citation and internal
punctuation omitted).
The majority opinion analyzes this argument as a legal issue1 under
Louisiana law. This analysis of Louisiana law is nowhere in Banks’s
1
To the extent that the order is considered ambiguous, construction of an ambiguous
order under Louisiana law requires inquiry into the record as a whole which would necessitate
the gathering of additional facts. See Rodrigue v. Ziifle, 288 So. 2d 630, 632 (La.
1974)(construction of an ambiguous order requires review of the record as a whole). We have
repeatedly stated that questions of fact capable of resolution by the district court cannot
constitute plain error. See, e.g., United States v. Chung,
261 F.3d 536, 539 (5th Cir. 2001).
This includes a trial court’s adoption, without inquiry, of a PSR’s recommendation. United
States v. McCaskey,
9 F.3d 368, 376 (5th Cir. 1993) (“In the absence of any objection, the
district court simply adopted the recommendation of the probation officer in the PSR . . . . Had
[the defendant] objected, the district court could have resolved this question of fact at
sentencing.”); United States v. Lopez,
923 F.2d 47 (5th Cir. 1991). Banks’s case is no different
here. Had he objected to the Probation Officer’s interpretation of the Order or the applicability
of § 2A2.2(b)(5) based on the protective order’s language regarding gun possession, the district
court could have easily resolved the question at sentencing. His failure to do so forecloses his
arguments on appeal under a plain error standard of review.
12
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objection in the district court, further buttressing the conclusion that plain
error review applies.2 Further, Louisiana law does not preclude a protective
order from prohibiting a defendant from possessing a firearm.
Louisiana law is not as restrictive as the majority opinion contends.
Indeed, the very provision cited by the majority opinion provides that a
protective order may grant any relief enumerated in Section 46.2135 which
authorizes relief as the court “deems necessary to protect from abuse the
petitioner, any minor children, or any person alleged to be an incompetent.”
LA. REV. STAT. § 46:2135. The order may include “but is not limited to,”
directives for the defendant to refrain from abusing, harassing, interfering
with the named beneficiary, administering property, and awarding temporary
custody of minor children and pets. Id. (emphasis added). A court may also
order payment of temporary support or provision of housing for the petitioner,
medical evaluations, and counseling.
Id. § 46:2136
Though generally directed at preventing abuse and harassment,
Louisiana law recognizes prohibitions against a wide variety of conduct not
directly against the protected party and grants wide discretion to the court to
impose restrictions on defendants. See id.; Francois v. Francois,
941 So. 2d
722, 726 (La. App. 2006) (“The trial court has wide discretion in the issuance
of protective orders.”). Nothing in the referenced provisions prevents a court
from concluding that prohibiting a defendant from possessing a firearm would
help protect the petitioner from abuse. See LA. REV. STAT. § 46:2135 (allowing
the court to impose a protective order “as it deems necessary to protect”
2
I do not “take issue” with applying Louisiana law to the construction of the protective
order. I simply note that this analysis is nowhere in Banks’s objection to the district court
which is further evidence that the objection is not preserved.
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petitioner from abuse).3 Given the wide latitude afforded Louisiana courts to
impose restrictions in protection orders, I conclude that the district court’s
construction of the protective order was a reasonable one and not error.
But even if we accept that it was error, it was certainly not “obvious.”
On plain error review, it is not the Government’s burden to show that the
Order prohibited Banks’s conduct; rather, it is Banks’s burden, to establish
that it “obviously” did not. United States v. Martinez-Vega, 471 F.3d 559, 563
(5th Cir. 2006) (appellant’s burden to demonstrate plain error).4 As far as
Louisiana law goes, the majority opinion cites no Louisiana cases or statutes
holding that a protective order cannot include a provision barring gun
possession.5 Further, the majority opinion cites no case concluding that
under federal law this type of language in a protective order cannot give rise
to the enhancement in question.
The only case interpreting this provision in a protective order, United
States v. Azure, 571 F.3d 769, 771 (8th Cir. 2009), does support the basic
proposition that § 2A2.2(b)(5) may enhance a defendant’s sentence when the
victim of the offense is also the named beneficiary under the protective order;
but that is not a question that is in dispute here. Azure says nothing on the
issue here—whether § 2A2.2(b)(5) should be applied where a defendant’s
possession of a firearm itself arguably violates his protective order. Despite a
lack of authority on the point, nothing in § 2A2.2(b)(5) precludes application
3
The question of who might have standing to enforce a protective order (as alluded
to by the majority opinion) is a different matter from whether the protective order could
lawfully contain a prohibition on gun possession.
4
It is also worth noting that even under the clear error standard used by the majority
opinion, the “burden is squarely on the appellant to show an appellate court that a finding is
clearly erroneous.” Abramson v. St. Regis Paper Co. (In re Abramson), 715 F.2d 934, 938 (5th
Cir. 1983) (citation omitted).
5
Nothing in the guideline enhancement requires that a state court actually find a
defendant such as Banks to have violated the protective order for the enhancement to apply.
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No. 11-30484
of the enhancement in the event the alleged violation of a protective order is
due to conduct other than against the specified beneficiary of that order.
United States v. Banks, 339 F.3d 267 (5th Cir. 2003), adds no clarity to
this question. The defendant there was subject to a protective order, and
was then implicated in an explosion which destroyed his ex-girlfriend’s home.
Id. at 267-69. Searches of the defendant’s property uncovered several
firearms and he was thus charged pursuant to 18 U.S.C. § 922(g)(8).
Id. at
268. Section 2A2.2, however, was inapplicable because that Guideline applies
where the underlying conviction is an assault. There is no indication in
Banks that the defendant was ever charged with assault. Despite their
shared surname, the defendant in Banks and the Banks in the instant appeal
are only similar in that they both violated § 922(g)(8) because they possessed
firearms while under a protective order. They are dissimilar in that the
defendant in Banks could not have been subject to the sentencing
enhancement under § 2A2.2(b)(5); thus, the majority opinion’s use of Banks to
show that the defendant there did not violate his protective order based on
his firearm possession is misplaced.
Therefore, neither Azure nor Banks are analogous to this case because
neither involved the opportunity to apply § 2A2.2(b)(5) where the defendant’s
conduct was based on firearm possession despite no contact with the person
named in the protective order. Ultimately, the district court here relied on
the Government’s contention that Banks violated his Order based on the fact
that it contained a proviso against possessing a firearm. Banks concedes that
the Order contains this language, but simply contends that the Order’s
language should be construed differently than it was without citing to any
authoritative precedent. Banks also acknowledges that he otherwise violated
§ 922(g)(8). Because the law is (at best for Banks) uncertain on this issue, any
error by the district court was not plain or readily apparent. See United
15
Case: 11-30484 Document: 00511909842 Page: 16 Date Filed: 07/03/2012
No. 11-30484
States v. Ellis, 564 F.3d 370, 376-78 (5th Cir. 2009) (highlighting that a
district court’s application of a “crime of violence” enhancement was not plain
error because law on point had not come out clearly on the issue and the
“question [was] close”); United States v. Garcia-Rodriguez,
415 F.3d 452, 455
(5th Cir. 2005). Because Banks cannot show that the district court’s
application of § 2A2.2(b)(5) was plainly erroneous, it is unnecessary to reach
the remaining prongs of plain error review.
I submit that the sentence should be affirmed. From the majority
opinion’s failure to do so, I respectfully dissent.
16
