     Case: 16-10748       Document: 00513938173         Page: 1     Date Filed: 04/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 16-10748                                    FILED
                                   Summary Calendar                               April 4, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DARYN ANTIONE REID,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-231-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       In challenging the 120-month sentence imposed on his guilty-plea
conviction for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), Daryn Antione Reid contends the district court erred in applying
the advisory Sentencing Guidelines enhancements under §§ 2K2.1(b)(6)(B) and
3C1.2.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-10748

      In that regard, Reid admitted he possessed a 9mm pistol, which he
attempted to retrieve from his clothing, as discussed infra, immediately prior
to fleeing arrest in September 2015, and which he discarded in a dumpster
before being apprehended. In an unrelated instance one month prior to this
arrest, Reid was observed by law enforcement officers offering to sell crack
cocaine. After noticing the police vehicle, Reid ran into a convenience store,
where he was observed discarding an unidentified object into a garbage can.
Shortly after he was arrested, a .45 caliber firearm was found in the garbage
can, but no charges were filed for this encounter.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      In applying § 2K2.1(b)(6)(B), the court found Reid possessed a .45 caliber
firearm in connection with the felony offense of “Attempt to Distribute Cocaine
Base”. That enhancement applies when defendant “[u]sed or possessed any
firearm or ammunition in connection with another felony offense”. U.S.S.G.
§ 2K2.1(b)(6)(B).    “The district court’s determination of the relationship
between the firearm and another offense is a factual finding.” United States v.
Coleman, 609 F.3d 699, 708 (5th Cir. 2010). A criminal charge need not have




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                                 No. 16-10748

been brought for an offense to qualify as “another felony offense” under this
Guideline. § 2K2.1, cmt. n.14(C).
      Reid   presents    three   challenges     to    the      court’s   imposing   the
§ 2K2.1(b)(6)(B) enhancement. First, he asserts the evidence was insufficient
to prove he possessed the .45 caliber firearm and committed the offense of sale
of a dangerous drug under Tex. Health & Safety Code § 483.042.                      The
undisputed evidence showed: two police officers overheard Reid offer cocaine
base to individuals in an automobile in the parking lot of a convenience store;
Reid entered the convenience store immediately after the officers instructed
him to walk towards them; two witnesses inside the convenience store observed
Reid place an item in a garbage can shortly before the .45 caliber firearm was
found there; and Reid verbally threatened to shoot those witnesses and the
individuals in the automobile. Based on the record as a whole, the court’s
finding he possessed the .45 caliber firearm was plausible and thus not clearly
erroneous. See Coleman, 609 F.3d at 708–09.
      Reid’s second challenge concerns the Texas offense for sale of a
dangerous drug, but he does not state anywhere in his brief why his conduct
did not amount to the offense of attempt to distribute cocaine base under 21
U.S.C. §§ 841 and 846. He has, therefore, waived this challenge, see United
States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002), and has not shown the
court erred in determining he possessed a firearm in connection with the felony
offense of attempted distribution of cocaine base.
      Third, Reid asserts Guideline § 2K2.1(b)(6)(B) is inapplicable because his
conviction involved the possession of the 9mm and not the .45 caliber—a
different firearm in a different incident. This contention is unavailing because
the Guidelines commentary discusses both §§ 2K2.1(b)(6)(B) and (c)(1), and
makes clear that only § 2K2.1(c)(1) requires the firearm possessed in



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                                 No. 16-10748

connection to another felony offense be the same firearm cited in the offense of
conviction.   See § 2K2.1, cmt. n.14(A) (“[S]ubsection (c)(1) contains the
additional requirement that the firearm or ammunition be cited in the offense
of conviction”.). In short, the court did not err in applying the enhancement.
      Concerning Reid’s challenging the court’s applying § 3C1.2, that
Guideline applies “[i]f the defendant recklessly created a substantial risk of
death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer”. U.S.S.G. § 3C1.2. He contends the court clearly erred
in finding he recklessly created a substantial risk of death or serious bodily
injury to another person during his September flight. Reid’s conduct while
fleeing from a police officer included reaching for a 9mm pistol that was in
Reid’s waistband, which caused the officer to take cover for safety; eventually
removing the pistol from his waistband and climbing over a fence, at which
time the pistol discharged one round; and continuing to run with the pistol
through an apartment complex until he discarded it in a dumpster.
Accordingly, the court’s application of § 3C1.2 was supported by the evidence
and not clearly erroneous. See United States v. Bardell, 294 F. App’x 881, 881–
82 (5th Cir. 2008).
      AFFIRMED.




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