                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                          F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                         February 12, 2007
                               FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk
                                           No. 06-10294



UNITED STATES OF AMERICA,
                                                                              P laint iff- Appellee,


                                               versus


MELVIN ODELL MINNITT, JR.,
                                                                              Defendant-Appellant.


                           Appeal from the United States District Court
                               for the Northern District of Texas
                                     (No. 5:05-CR-085-C)




Before DAVIS and STEWART, Circuit Judges, and CRONE, District Judge.*

PER CURIAM:**

       Melvin Minnitt was convicted of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). At sentencing, the district court enhanced his sentence under U.S.S.G. §

2K2.1(b)(5). Minnitt appeals the application of this enhancement.




       *
        District Judge for the Eastern District of Texas, sitting by designation.
       **
         Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
                      I. FACTUAL AND PROCEDURAL BACKGROUND

       On November 28, 2004, Minnitt, believing his wife was having an affair with their neighbor,

Airickison Nelson, called Nelson and told him to come over so Minnitt could shoot him.1 Before

Minnitt made the call, he retrieved a rifle from his bedroom and fired it twice, once from his front

porch and once from his back porch. Nelson and the police arrived at the Minnitt residence at

approximately the same time. Minnitt exited his house unarmed, and Nelson began yelling at him.

Minnitt went back into the house, with the officer following and ordering him to stop. The officer

pointed his gun at Minnitt, who immediately placed his hands on his head. Nelson then entered the

home and began yelling at Minnitt again. Minnitt was arrested at the scene without further incident

and told the officer that he had a gun behind the headboard of his bed. At trial, Minnitt was sentenced

to thirty-three months’ imprisonment, including a sentencing enhancement of four levels under

U.S.S.G. § 2K2.1(b)(5). Minnitt appeals the application of this sentencing enhancement.

                                         II. DISCUSSION2

       The Sentencing Guideline at issue, § 2K2.1(b)(5), provides in relevant part: “If the defendant

used or possessed any firearm or ammunition in connection with another felony offense; or possessed

or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would

be used or possessed in connection with another felony offense, increase by 4 levels.” A “felony


       1
         Minnitt actually stated that he was going to “smoke his [Nelson’s] ass.” The district court
inferred that Minnitt’s statement was a threat to shoot Nelson, and Minnitt does not contest this
finding on appeal.
       2
        While the government objected to the application of the enhancement at the trial level, its
defense of the enhancement on appeal is appropriate because of the differing standards applied on
appeal and in the district court.

                                                  2
offense” is defined in the commentary to the Guideline as “any offense (federal, state, or local)

punishable by imprisonment for a term exceeding a year, whether or not a criminal charge was

brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.4 (2005).

       Post-Booker, this court reviews the factual findings of the district court for clear error and

its interpretation and application of the Guidelines de novo. United States v. Caldwell, 448 F.3d 287,

290 (5th Cir. 2006). “A district court is permitted to draw reasonable inferences from the facts, and

these inferences are fact-findings reviewed for clear error so long as the enhancement is plausible in

light of the record as a whole.” Id. The district court’s determination that there was a connection

between Minnitt’s possession of the firearm and the felonious behavior is a factual finding reviewed

for clear error. See United States v. Condren, 18 F.3d 1190, 1200 (5th Cir. 1994).

       Minnitt argues that the most he could be charged with under Texas law is assault under TEX.

PENAL CODE ANN. § 22.01, a misdemeanor. However, the district court enhanced the sentence

because it found that Minnitt intended that the gun would be used in connection with the aggravated

assault of Nelson, a felony under TEX. PENAL CODE ANN. § 22.02. This use of § 2K2.1(b)(5) is

proper under both the plain language of the statute and under this Circuit’s case law on this issue,

Caldwell, 448 F.3d at 292 (“The plain language of the guideline dictates that the government need

not prove that the firearm was actually used in a specific other felony offense; it is enough that a

defendant had reason to believe that it would be.”). Because it is a factual finding, this court reviews

for clear error the district court’s determination that Minnitt intended to shoot Nelson. Based on

Minnitt’s call to Nelson, his entry into the house (where the gun was) after Nelson arrived, and his

firing of the weapon before Nelson arrived, the district court’s determination was not clearly

erroneous.


                                                   3
       Minnitt’s use of the weapon also must be “in connection with” aggravated assault for the

sentencing enhancement to have been correctly applied. This court looks to whether the firearm “may

have facilitated or made more dangerous the other felony offense.” United States v. Villegas, 404

F.3d 355, 364 (5th Cir. 2005). Here, the presence of the weapon not only would have facilitated the

aggravated assault but would have been the primary tool for committing the felonious behavior. The

district court did not clearly err in finding that Minnitt possessed the weapon “in connection with”

the possible aggravated assault.

                                       III. CONCLUSION

       For the above reasons, we affirm the enhancement of Minnitt’s sentence.




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