     Case: 19-10254      Document: 00515402813         Page: 1    Date Filed: 05/01/2020




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

                                                                                FILED
                                      No. 19-10254                           May 1, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

DAMONI OWENS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-37-1


Before WIENER, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant pleaded guilty to possessing a firearm as a felon,
and the district court imposed a within-Guidelines sentence. Defendant-
Appellant appeals only the application of a four-level enhancement under
Section 2K2.1(b)(6)(B) of the Sentencing Guidelines (“Section 2K2.1”), which
applies “[i]f the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). The district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10254
court applied the enhancement based on Defendant-Appellant’s alleged
participation in the burglary in which the firearm giving rise to his conviction
was stolen. Defendant-Appellant objected, arguing that there was no evidence
that he (as opposed to his co-conspirator) took the gun during the burglary. On
appeal, he argues that when the felony justifying the application of the
enhancement in question is a burglary, the enhancement only applies if the
defendant himself “finds and takes a firearm.” See id. cmt. n.14(B).
       The parties dispute whether the district court made an explicit factual
determination regarding Defendant-Appellant’s participation in the burglary.
Having reviewed the record, we conclude that it is unclear what factual
determination the district court reached.
        At the sentencing hearing, the government responded to Defendant-
Appellant’s objection that there was insufficient evidence that he was “party”
to the burglary by arguing that Defendant-Appellant himself took the gun. The
district court interrupted the government’s argument to comment that the
evidence could also show that Defendant-Appellant “was participating with
someone who stole [the handgun], cooperated with someone, participating,
conspiring with.” The government agreed, but continued to insist, “I think it’s
more probable than not [that Defendant-Appellant] stole it, and a big part of it
is because I just don’t find him to be credible. . . .”
       After hearing the parties’ arguments, the district court found that the
enhancement applied. In making that finding, the court opined:
       My finding is that the specific offense characteristic set out in
       Paragraph 25 1 of the third addendum is appropriate because it
       appears, by a preponderance of the evidence, that the defendant,
       along with Vernon Williams, were in the business of burglarizing

       1Paragraph 25 states: “The defendant and Williams stole the firearm listed in the
offense of conviction during a Burglary of a Habitation on August 18, 2014. USSG
§ 2K2.1(b)(6)(B) provides for a 4 level increase if the defendant used or possessed any firearm
or ammunition in connection with another felony offense.”
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                                 No. 19-10254
      places in series and that the information contained in the original
      presentence report at Paragraphs 53 and 54 make it clear that
      these two individuals were engaged in common activity of
      burglarizing places, one on August 18 at Paragraph 53 that is
      misnumbered in the third addendum as Paragraph 54, and in
      actual Paragraph 54, there is in the original presentence report
      additional information supporting the fact that [the co-defendant]
      and the defendant were engaged in this behavior together, and it’s
      clear that [Defendant-Appellant] was aware of the conduct of his
      co-defendant and is properly chargeable with what he did as well
      because they were involved in a common endeavor and, also, for
      the reasons articulated by [the prosecutor] on behalf of the
      government. So the objection to the inclusion of the four points in
      Paragraph 25 of the third addendum is overruled.
It is reasonable, given the government’s argument, to conclude that the district
court found that Defendant-Appellant himself took the handgun. But it is also
reasonable to read the same language and conclude that the district court
found only that Defendant-Appellant was “properly chargeable” with the
conduct of his associate, who himself stole the gun.
      We are disinclined to reach a determination regarding the legality of
applying the relevant enhancement in situations like these absent more clarity
from the district court, which is charged with making findings of fact. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(explaining that a district court’s interpretation or application of the
Sentencing Guidelines is reviewed de novo, while its factual findings are
reviewed for clear error); see also United States v. Sarasti, 869 F.2d 805, 807
(5th Cir. 1989) (“Credibility determinations are peculiarly within the province
of the trier-of-fact, and we will not disturb the sentencing judge’s findings.”).
We therefore VACATE Defendant-Appellant’s sentence and REMAND this
case for the limited purposes of (1) factfinding regarding how the firearm in
question came to be in Defendant-Appellant’s possession; and (2) resentencing.



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