     Case: 12-10203       Document: 00512204731         Page: 1     Date Filed: 04/10/2013




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

                                                                            FILED
                                                                           April 10, 2013
                                     No. 12-10203
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GREGORY GRAY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-22-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Gregory Gray pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges the district court’s
imposition of a four level sentencing enhancement for possession of a firearm in
connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). The
district court found that Gray had possessed the firearm in connection with the
offense of bank fraud. See 18 U.S.C. § 1344(2). In particular, the district court
found that Gray had used an unloaded handgun to pretend to rob his accomplice,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10203     Document: 00512204731     Page: 2   Date Filed: 04/10/2013

                                  No. 12-10203

who was a bank manager, at an automatic teller machine (ATM); the district
court also found that, as a bank manager, Gray’s accomplice knew that the bank
had a policy requiring it to automatically reimburse robbery victims for any loss.
      Section 1344(2) requires the Government to show that the defendant
knowingly executed, or attempted to execute, a scheme or artifice to obtain any
of the moneys, funds, or other property owned by, or under the custody or control
of, a financial institution, by means of false or fraudulent pretenses,
representations, or promises. The Government must establish the existence of
the other felony offense by a preponderance of the evidence. United States v.
Anderson, 559 F.3d 348, 357 (5th Cir. 2009). We review the district court’s
interpretation or application of the Guidelines de novo, and its factual findings
are reviewed for clear error. United States v. Coleman, 609 F.3d 699, 708 (5th
Cir. 2010).
      Gray argues that the Government failed to show that he and his
accomplice made any misrepresentation to the bank, failed to prove the existence
of the reimbursement policy, failed to show that he and his accomplice knew of
the reimbursement policy or intended to exploit it, and failed to show that they
put the bank at risk of a loss. We conclude that, by staging the robbery in view
of the bank’s surveillance camera and reporting it to the police, Gray and his
accomplice misrepresented the existence of a robbery to the bank. In addition,
the Government presented sufficient testimony at the sentencing hearing to
establish the existence of the reimbursement policy and to allow the district
court to make “common-sense inferences” that, as a bank manager, Gray’s
accomplice was aware of this policy. See United States v. Caldwell, 448 F.3d 287,
292 (5th Cir. 2006). We also conclude that the district court did not clearly err
by finding that the fraudulent intent of Gray and his accomplice could be
inferred from their conduct. Finally, because the bank’s obligation to reimburse
robbery victims was not dependent on their filing of a claim, the district court



                                        2
    Case: 12-10203     Document: 00512204731     Page: 3   Date Filed: 04/10/2013

                                  No. 12-10203

did not clearly err in finding that Gray and his accomplice put the bank at a risk
of a loss, even though the accomplice never made a claim for reimbursement.
      Next, Gray asserts that the § 2K2.1(b)(6) enhancement should not apply
where it is unclear that the firearm was used in connection with the other
offense or that the firearm made the other offense more dangerous. He argues
that his possession of the handgun was unnecessary to the bank fraud offense
and that the circumstances of the fake robbery, particularly the fact that the
handgun was unloaded, indicate that his use of a firearm did not make the bank
fraud offense more dangerous. Gray acknowledges that plain error review would
apply because he did not raise this claim below. The relationship between a
firearm and another offense is a factual question; because these questions could
have been resolved by the district court upon a proper objection, they cannot
constitute plain error. See Coleman, 609 F.3d at 708; United States v. Claiborne,
676 F.3d 434, 438 (5th Cir. 2012).
      AFFIRMED.




                                        3
