     Case: 19-30016      Document: 00515384282         Page: 1    Date Filed: 04/16/2020




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

                                                                               FILED
                                    No. 19-30016                           April 16, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAYFIELD C. WELLS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:18-CR-28-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Rayfield C. Wells was sentenced to 84 months in prison for possessing a
firearm after having been convicted of a felony. Wells argues the district court
erred in applying the four-level offense enhancement under U.S.S.G. §
2K2.1(B)(6)(b) for possessing the firearm in connection with another felony
offense.    The other felony is the Louisiana crime for the “intentional or
criminally negligent discharge[e] of any firearm . . . where it is foreseeable that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30016

it may result in death or great bodily harm to a human being.” LA. R.S.
14:94(A). Wells asserts that the evidence is insufficient to show (1) that he
discharged the firearm, and (2) if he did, that it was foreseeable that the
gunshot might result in death or great bodily harm.
      We review the district court’s application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The Government must prove by
a preponderance of the evidence the facts forming the basis of a sentencing
enhancement. United States v. Serfass, 684 F.3d 548, 553 (5th Cir. 2012).
      Law enforcement received reports of shots fired at an apartment complex
in Baton Rouge. Deputies responded and heard additional gunshots. They
found Wells and his brother in the parking lot of the apartment complex.
Wells’s brother had a loaded revolver in his waistband. Deputies found a
handgun in a bush close to where Wells fled when the deputies first confronted
him. Wells’s DNA was later found on the handgun. The gun, which had an
obliterated serial number, had an empty magazine and its slide was locked to
the rear, indicating the entire magazine had been fired. Shell casings found
near the apartment building were of the same caliber and brand as loose
ammunition discovered in the truck the Wells brothers had been approaching
before fleeing when the deputies arrived.
      This is more than enough evidence to support the district court’s finding
that Wells fired the gun found in the bush. And discharging a firearm at an
apartment complex carries a sufficient risk of harm to be a crime under
Louisiana Revised Statute § 14:94(A). Even when a gun is not aimed at a
person, it is foreseeable that firing shots in a residential area might cause
death or serious bodily injury. See, e.g., State v. Delaneuville, 283 So. 3d 1065,
1067–68 (La. Ct. App. 5th. Cir. 2019); State v. Matthews, 70 So. 3d 116, 120



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                                 No. 19-30016

(La. Ct. App. 4th Cir. 2011); State v. Mickel, 581 So. 2d 404, 405 (La. Ct. App.
5th Cir. 1991). The cases Wells relies on involved shots fired in unpopulated
areas. See State v. Chenevart, 49 So. 2d 1059, 1061–65 (La. Ct. App. 3d Cir.
2010); State v. Cain, 21 So. 3d 1104, 1105 – 07 (La Ct. App. 3d Cir. 2009). In
any event, there was also sufficient evidence to support the conclusion that
Wells was shooting at someone.       He told the deputies, “Man, they were
breaking into my brother’s s***” and “I should have killed that mother******.”
      AFFIRMED.




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