     Case: 18-60657      Document: 00515126871         Page: 1    Date Filed: 09/20/2019




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

                                    No. 18-60657                                FILED
                                  Summary Calendar                      September 20, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

DARMARCUS FISHER, also known as Skull-D,

              Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:17-CR-137-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Darmarcus Fisher appeals his 120-month sentence. He pleaded guilty
to a charge of being a felon in possession of ammunition in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). The district court varied above the advisory
guidelines range of 46 to 57 months. Fisher challenges the application of an
enhancement to his sentence pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for use or
possession of any firearm or ammunition in connection with another felony
offense and the substantive reasonableness of his sentence.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60657

      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010). “A district court’s
determination of the relationship between a firearm [or ammunition] and
another offense is a factual finding.” United States v. Coleman, 609 F.3d 699,
708 (5th Cir. 2010). In its decision to apply an enhancement, the district court
may make reasonable inferences from the facts, and these inferences are fact
findings also reviewed for clear error. United States v. Coleman, 609 F.3d 699,
708 (5th Cir. 2010). The clear error standard of review requires only that the
finding be “plausible in light of the record as a whole.” Id.
         United States Sentencing Guidelines subsection 2K2.1(b)(6)(B) provides
for a four-level enhancement if the Government shows, by a preponderance of
the evidence, that a defendant “used or possessed any firearm or ammunition
in connection with another felony offense.” § 2K2.1(b)(6)(B); United States v.
Robinson, 654 F.3d 558, 562 (5th Cir. 2011). Fisher contends that the district
court erred in applying the § 2K2.1(b)(6)(B) enhancement based on a finding
that he used or possessed a firearm in connection with a Mississippi attempted
aggravated assault.
      At sentencing Fisher conceded and he now concedes that he possessed a
firearm at two separate times on March 7, 2016 and that his possession of a
firearm earlier in the day was sufficient to charge him in violation of § 922(g).
Nevertheless, Fisher contends that the application of the § 2K2.1(b)(6)(B)
enhancement based on his possession of the firearm later in the day was error,
given that he was acting in self defense. Fisher relies upon this court’s decision
in United States v. Panter, 688 F.2d 268, 269 (5th Cir. 1982) to support his
claim.
      In Panter, this court concluded that a convicted felon was not guilty of
possession of a firearm where the “felon reacting out of a reasonable fear for


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                                  No. 18-60657

the life or safety of himself, in the actual, physical course of a conflict that he
did not provoke, takes temporary possession of a firearm for the purpose or in
the course of defending himself.” Panter, 688 F.2d at 272. However, the court
emphasized that its holding protects such a defendant “only for possession
during the time he is endangered. Possession either before the danger or for
any significant period after it remains a violation.” Id.
      Fisher’s case is distinguishable from Panter. As the district court found,
Fisher was not merely reacting out of a reasonable fear for his life or safety but
was actively engaged in a shootout. The record evidence supports the finding
that Fisher’s possession of a firearm was not wholly temporary and in the
course of defending himself; rather, he possessed a firearm leading up to the
incident and earlier that day during the shooting of another individual. Thus,
the district court’s finding that Fisher was not acting in self-defense is
plausible in light of the record as a whole, Williams, 610 F.3d at 292, and does
not evoke “a definite and firm conviction that a mistake has been committed,”
Koch v. United States, 857 F.3d 267, 275-76 (5th Cir. 2017) (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
      Additionally, Fisher contends that the district court imposed a
substantively unreasonable sentence when it varied upward to impose a 120-
month sentence based upon his criminal history and his conduct which,
according to Fisher, was justified by a reasonable claim of self-defense. Fisher
did not object in the district court to the substantive reasonableness of his
sentence, and he did not raise in the district court the arguments that he now
raises in his challenge to the substantive reasonableness of his sentence.
Where the defendant fails to object to the reasonableness of his sentence, we
review for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.




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                                     No. 18-60657

2007). 1     In    reviewing     a    non-guidelines      sentence     for   substantive
reasonableness, this court considers “the totality of the circumstances,
including the extent of any variance from the Guidelines range,” United States
v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and
citation omitted), but “must give due deference to the district court’s decision
that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the
variance.” United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)
(internal quotation marks and citation omitted).
      The record does not show that the district court did not account for a
factor that should have received significant weight, gave significant weight to
an irrelevant or improper factor, or represented a clear error of judgment in
balancing the § 3553(a) factors. Peltier, 505 F.3d at 392. The factors about
which Fisher complains are all permissible factors for consideration in
applying an upward variance. See United States v. Williams, 517 F.3d 801,
811 (5th Cir. 2008); Brantley, 537 F.3d at 349. Moreover, this court has upheld
upward variances of similar magnitude. See e.g., United States v. Rhine, 637
F.3d 525, 526, 528-29 (5th Cir. 2011) (upholding an upward variance to 180
months from a range of 30 to 37 months). Fisher’s arguments amount to a
mere disagreement with the district court’s weighing of the §3553(a) factors.
He fails to show error, plain or otherwise in the district court’s sentencing
determination. See Gall v. United States, 552 U.S. 38, 51 (2007).
       Finally, we note that the written judgment describes Fisher’s offense of
conviction as felon in possession of a firearm, but the record shows that Fisher
pleaded guilty to being a felon in possession of ammunition. This error is a




      1  The Supreme Court’s grant of certiorari in Holguin-Hernandez v. United States, No.
18-7739, 2019 WL 429919 (U.S. June 3, 2019), does not disturb our precedent. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).

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clerical error subject to correction pursuant to Federal Rule of Criminal
Procedure 36. See United States v. Mackay, 757 F.3d 195, 196 (5th Cir. 2014).
     Accordingly, the judgment of the district court is AFFIRMED, and the
matter is REMANDED for correction of the clerical error in the judgment.




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