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

                                                 FILED
                                                                            July 24, 2009
                                     No. 08-50622
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

OSCAR ELOY TENA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:08-CR-4-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Oscar Eloy Tena pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 84 months in
prison. He argues that the district court erred in applying a four-level upward
adjustment pursuant to U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in
connection with another felony offense, namely, the offense of unlawfully
carrying a weapon on licensed premises, in violation of T EXAS P ENAL C ODE A NN.
§ 46.02. Tena asserts that the offense of unlawfully carrying a weapon was not

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50622

sufficiently distinct from the offense of being a felon in possession of a firearm
so as to permit the enhancement.
      After United States v. Booker, 543 U.S. 220 (2005), this court continues to
review a district court’s interpretation and application of the guidelines de novo
and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355,
359 (5th Cir. 2005). In determining whether a guideline enhancement applies,
a district court is allowed to draw reasonable inferences from the facts, and these
inferences are fact-findings reviewed for clear error. United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006).
      The Sentencing Guidelines provide for a four-level increase if the
defendant “used or possessed any firearm or ammunition in connection with
another felony offense.” § 2K2.1(b)(6). “Another felony offense” is defined as
“any federal, state, or local offense, other than the explosive or firearms
possession or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was brought, or a
conviction obtained.” § 2K2.1, comment. (n. 14)(C)).
      A person violates § 46.02(a) if he intentionally, knowingly, or recklessly
carries on or about his person a weapon. An offense under this section is a
felony if the offense is committed on any premises licensed or issued a permit by
this state for the sale of alcoholic beverages. § 46.02(c). Tena does not dispute
that he violated § 46.02(c).
      Here, Tena’s mere possession of the firearm would not itself implicate
§ 46.02(c). Rather, Tena also had to carry or possess the firearm on licensed
premises, an act that goes beyond mere possession. See United States v. Kuban,
94 F.3d 971, 975-76 (5th Cir. 1996). Thus, the enhancement was properly
applied. See id. at 976; see also United States v. Armstead, 114 F.3d 504, 512-13
(5th Cir. 1997).
      We also agree with the Government’s alternative argument that Tena’s
conduct of waving the loaded firearm at a crowd of people warranted the

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                                No. 08-50622

imposition of the enhancement. See Kuban, 94 F.3d at 976; United States v. Le,
512 F.3d 128, 134-135 (5th Cir. 2007); § 2K2.1, comment. (n.14(C)).
      AFFIRMED.




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