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United States v. Sexton, 03-40217 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 03-40217 Visitors: 21
Filed: Aug. 19, 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 20, 2003 Charles R. Fulbruge III Clerk No. 03-40217 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TRACY KENYON SEXTON, Defendant-Appellant. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:02-CR-52-ALL - Before JONES, WIENER, and BENAVIDES, Circuit Judges. PER CURIAM:* Tracy Kenyon Sexton appeals the 105-mo
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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 20, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-40217
                         Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

TRACY KENYON SEXTON,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:02-CR-52-ALL
                       --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Tracy Kenyon Sexton appeals the 105-month sentence imposed

following his plea of guilty to a charge of felon in possession

of a firearm.   Sexton challenges an increase to his offense level

pursuant to U.S.S.G. § 2K2.1(b)(5).    He argues that mere

possession of the firearm during another felony offense does not

justify the increase.   He contends that the Government did not

prove that the firearm was used in connection with the commission



     *
        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that this opinion should not be published and is not precedent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. 03-40217
                                 -2-

of the unauthorized use of a motor vehicle (“UUMV”) offense, in

furtherance of the UUMV offense, or in obtaining the vehicle.

     The determination of the connection between a firearm and

another offense is a factual finding.      United States v. Mitchell,

166 F.3d 748
, 754 n.24 (5th Cir. 1999).     We review factual

findings for clear error.    United States v. Armstead, 
114 F.3d 504
, 507 (5th Cir. 1997).

     Section § 2K2.1(b)(5), U.S.S.G., authorizes a four-level

increase “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.”      A “close

relationship between the firearm and the other felony offense”

need not be shown; the showing required is only that the

“firearms were possessed and could have been used to facilitate”

the other felony offense.    
Armstead, 114 F.3d at 511
, 512.

     The presentence report provided that while he was involved

in the UUMV offense, a police officer saw Sexton pick up a black

revolver.   The district court did not clearly err in applying the

U.S.S.G. § 2K2.1(b)(5) increase to Sexton’s offense level because

the firearm was “readily available” to Sexton and “could have

been used to facilitate” his UUMV offense.      See 
Armstead, 114 F.3d at 512
.    The district court properly relied on the

information in the presentence report, which Sexton did not rebut

sufficiently.    See 
Mitchell, 166 F.3d at 754
.   Accordingly, the

judgment of the district court is AFFIRMED.

Source:  CourtListener

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