     Case: 16-11435   Document: 00514104670        Page: 1   Date Filed: 08/07/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                 United States Court of Appeals
                                    No. 16-11435                          Fifth Circuit

                                                                        FILED
                                                                   August 7, 2017
UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellee

v.

SHAWN KEITH HOTT,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Shawn Keith Hott pleaded guilty to being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced Hott to 120 months of imprisonment. Hott challenges his sentence
on appeal. For the reasons set forth below, we AFFIRM.
                                         I
      In 2015, Hott approached an unidentified witness who was using a
storage facility in Fort Worth, Texas, stating that he makes guns and silencers.
Hott showed the witness firearms, homemade silencers, and ammunition. Hott
also displayed bags of ammonium nitrate and aluminum powder, which he
stated could be combined to explode and level a building. Concerned by Hott’s
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statements and display, the witness alerted law enforcement authorities.
Federal agents later entered Hott’s storage unit pursuant to a search warrant
and seized thousands of rounds of ammunition, along with bags of ammonium
nitrate and aluminum powder. A subsequent search of Hott’s RV pursuant to
a search warrant revealed firearms, silencers, and more ammunition.
      Hott was indicted for one count of being a felon in possession of a firearm
and ammunition under 18 U.S.C. § 922(g)(1). Pursuant to U.S.S.G.
§ 2K2.1(a)(3), the Presentence Report (PSR) calculated Hott’s base offense
level to be 22 based on a prior Texas felony conviction for possession with intent
to deliver methamphetamine. The PSR added four levels under U.S.S.G.
§ 2K2.1(b)(1)(B) based on the amount of firearms involved in the offense. The
PSR also added four levels under U.S.S.G. § 2K2.1(b)(6)(B) because Hott used
or possessed a firearm or ammunition in connection with another felony
offense. Finally, the PSR recommended that Hott did not qualify for a sentence
reduction based on acceptance of responsibility under U.S.S.G. § 3E1.1(a).
      The Sentencing Guidelines range was calculated as 135 to 168 months,
but because the statutory maximum sentence was ten years, the Guidelines
range became 120 months. The district court sentenced Hott to 120 months.
                                        II
                                       A.
      First, Hott contends that the district court erred in imposing the
§ 2K2.1(b)(6)(B) enhancement for using or possessing a firearm in connection
with another felony offense. He raised this objection before the district court,
which overruled the objection. We review the district court’s application of the
enhancement de novo and its factual findings for clear error. See United States
v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).
      The enhancement applies “if the firearm or ammunition facilitated, or
had the potential of facilitating, another felony offense or another offense.”
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U.S.S.G. § 2K2.1 cmt. n.14(A). The district court imposed the enhancement on
the basis that Hott possessed silencers in connection with another felony
offense, namely, manufacturing and selling silencers in violation of the
National Firearms Act. See United States v. Anderson, 885 F.2d 1248, 1250-51
(5th Cir. 1989) (en banc) (explaining that a “silencer” is considered a “firearm”
under the National Firearms Act). The silencers were not cited in the offense
of conviction. If the firearm used to support the enhancement is not a firearm
cited in the offense of conviction, the enhancement applies if the offense of
conviction and “another felony offense” were “part of the same course of
conduct or common scheme or plan.” See U.S.S.G. § 2K2.1 cmt. n.14(E)(ii).
      Hott argues that his possession of the firearm and ammunition cited in
the offense of conviction did not facilitate or have the potential of facilitating
his manufacture or sale of silencers. But the relevant inquiry here is whether
his possession of the silencers not cited in the offense of conviction facilitated
or had the potential of facilitating the unlawful manufacture or sale of
silencers. See id. cmt. n.14(A) & n.14(E)(ii). The district court did not err in
concluding that Hott’s conduct meets the requirements.
                                       B.
      Second, Hott argues that the district court plainly erred by adopting the
PSR’s recommendation that he should not be given a sentence reduction under
U.S.S.G. § 3E1.1(a) for acceptance of responsibility. A defendant may receive a
two-level reduction in offense level if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). This court “will affirm a
sentencing court’s decision not to award a reduction . . . unless it is without
foundation, a standard of review more deferential than the clearly erroneous
standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008)
(internal quotation marks omitted) (quoting United States v. Anderson, 174
F.3d 515, 525 (5th Cir. 1999)). During a presentence interview, Hott was
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“adamant that the firearms and ammunition belonged to the defendant’s
roommate and coworker who lived with the defendant in his RV.” Hott does
not show plain error and, in any event, the district court had foundation to
deny the reduction.
                                      C.
      Third, Hott contends that the government selectively and vindictively
prosecuted him, citing the government’s enforcement of marijuana laws. Hott’s
argument lacks adequate legal support. Moreover, Hott waived this argument
by entering an unconditional guilty plea.
                                      D.
      Finally, Hott argues that the district court erred by imposing a base
offense level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3), which requires a
previous felony conviction for a crime of violence or controlled substance
offense. Because he did not object to application of § 2K2.1 below, we review
for plain error. See United States v. Shepherd, 848 F.3d 425, 427 (5th Cir.
2017). To satisfy plain error review, Hott must demonstrate that an error was
clear or obvious and that it affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Substantial rights are affected when
there is “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016) (internal quotation marks omitted). This court has
discretion to correct a plain error only if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
      The district court imposed a base offense level of 22 based on its
determination that Hott committed the instant offense subsequent to a Texas
felony conviction for possession with intent to deliver a controlled substance.
This court recently held that Texas possession with intent to deliver a
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controlled substance does not qualify as a controlled substance offense under
the Guidelines. See United States v. Tanksley, 848 F.3d 347, 351-52 (5th Cir.),
supplemented by 854 F.3d 284 (5th Cir. 2017). Based on Tanskley, the
Government concedes error in calculation of the Guidelines range.
      Hott still must show “a reasonable probability that, but for the
[Guidelines calculation] error, the outcome of the proceeding would have been
different.” Molina-Martinez, 135 S. Ct. at 1343 (internal quotation marks
omitted). At sentencing, the district court found after “consider[ing] all of the
facts and circumstances” that “the offense conduct as well as the relevant
conduct . . . coupled with the defendant’s prior criminal history[] justify this
particular sentence. . . . I believe this sentence provides just punishment in
this case, affords adequate deterrents to others, and protect[s] the public from
future crimes of the defendant.” In its written statement of reasons, the district
court stated that “[e]ven if the guideline calculations are not correct, this is the
sentence the Court would otherwise impose under 18 U.S.C. § 3553.” Our
review of the record shows “that the district court thought the sentence it chose
was appropriate irrespective of the Guidelines range.” Id. at 1346-47 (“The
Government remains free to point to parts of the record—including relevant
statements by the judge—to counter any ostensible showing of prejudice the
defendant may make.”) (internal quotation marks and alteration omitted); see
also United States v. Castro-Alfonso, 841 F.3d 292, 298 (5th Cir. 2016) (“We
take the district court at its clear and plain word.”); United States v. Bonilla,
524 F.3d 647, 656-57 (5th Cir 2008) (finding no reasonable probability of
different sentence despite erroneous enhancement where district court stated
that even if Guidelines calculation were wrong, “this is the sentence that I




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would impose in any event”). Hott fails to show a reasonable probability of a
different outcome and does not satisfy plain error review. 1
                                              III
       The judgment of the district court is AFFIRMED.




       1 Hott relatedly argues that the district court erred in failing to adequately explain its
written statement that “[e]ven if the guideline calculations are not correct, this is the
sentence the Court would otherwise impose under 18 U.S.C. § 3553.” This statement was
consistent with the district court’s oral pronouncement of the sentence based on the § 3553
factors of punishment, deterrence, and protection of the public at sentencing.
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