Case: 20-10131     Document: 00515543253         Page: 1    Date Filed: 08/27/2020




            United States Court of Appeals
                 for the Fifth Circuit                               United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                No. 20-10131                          August 27, 2020
                              Summary Calendar                         Lyle W. Cayce
                                                                            Clerk

 United States of America,

                                                           Plaintiff—Appellee,

                                     versus

 Tommy Demond Fannin,

                                                       Defendant—Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 4:19-CR-242-1


 Before Southwick, Duncan, and Oldham, Circuit Judges.
 Per Curiam:*
        Tommy Demond Fannin pleaded guilty to illegal possession of a
 firearm by a convicted felon. He was sentenced to a 78-month term of
 imprisonment. Fannin now appeals, challenging his sentence.




        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10131      Document: 00515543253         Page: 2    Date Filed: 08/27/2020




                                  No. 20-10131


        The facts recounted in Fannin’s Presentence Report (PSR) show that
 Tianay Grey allowed Fannin to borrow her car. Upon Fannin’s return, he
 became upset with Grey and demanded that she give back some money. Grey
 exited her apartment to retrieve the money, which was in her car. Fannin
 followed her outside, and he discharged his illegally possessed firearm
 straight up in the air. Grey became fearful. After she gave the money to
 Fannin, he took Grey inside, strangled her, and punched her in the eye.
        In determining Fannin’s guidelines range, the probation officer
 applied the cross-reference under U.S.S.G. § 2K2.1(c)(1)(A) to U.S.S.G.
 § 2X1.1(a), which in turn led to the application of U.S.S.G. § 2A2.2, the
 Guideline addressing aggravated assault.         Fannin’s objection to the
 application of § 2K2.1(c)(1) was overruled.
        In his sole issue on appeal, Fannin contends that the district court
 erred in imposing the cross-reference under § 2K2.1(c)(1) because there was
 no connection between his possession of the firearm and the aggravated
 assault on Grey. Relying on transcripts of Grey’s discussions with police
 officers, and on police reports, Fannin asserts that he discharged his firearm
 to keep Grey away from him, left the scene, and then came back, at Grey’s
 request, to return her key. It was only then, he contends, that the aggravated
 assault occurred, and he argues that the firearm did nothing to facilitate the
 commission of the aggravated assault.
        Pursuant to the commentary to § 2K2.1, subsection (c)(1) applies “if
 the firearm or ammunition facilitated, or had the potential of facilitating,”
 another offense. § 2K2.1, comment. (n.14(A)). We have stated that the “in
 connection with” language of § 2K2.1(c) requires a “functional nexus.”
 United States v. Mitchell, 166 F.3d 748, 756 (5th Cir. 1999). Our review of the
 district court’s application of § 2K2.1(c)(1) is de novo, whereas the factual




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Case: 20-10131      Document: 00515543253           Page: 3     Date Filed: 08/27/2020




                                    No. 20-10131


 finding of a connection between the firearm and another offense is reviewed
 for clear error. See id. at 754 n.24.
        Although there are references in the transcripts to Fannin leaving and
 coming back, the record does not clearly show that, after discharging the
 firearm, Fannin departed the scene before he strangled Grey. Because the
 factfinder’s choice between two permissible views of the evidence is not
 clearly erroneous, see United States v. Harris, 740 F.3d 956, 967 (5th Cir.
 2014), the district court did not clearly err to the extent it implicitly rejected
 Fannin’s contention that there were two separate encounters.
        The PSR establishes that the entire incident occurred at Grey’s
 residence, and police reports show that all of the relevant events, starting
 with the discharge of the firearm, and culminating in the aggravated assault
 on Grey, occurred within a few minutes. The record does not indicate that
 Fannin’s possession of the firearm and his commission of the aggravated
 assault were “geographically, spatially, functionally, [or] logically remote.”
 Mitchell, 166 F.3d at 756. In view of the foregoing, the district court’s
 determination that there was a connection between Fannin’s possession of
 the firearm and the aggravated assault on Grey “is plausible in light of the
 record read as a whole,” and is therefore not clearly erroneous. United States
 v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
        AFFIRMED.




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