     Case: 14-60406      Document: 00512876546         Page: 1    Date Filed: 12/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60406
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 19, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

VICTOR DARNELL WILLIAMS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CR-78-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Victor Darnell Williams appeals the sentence
imposed following his guilty plea conviction for attempting to possess with
intent to distribute a controlled substance. He contends that the district court
erred in imposing a criminal history point under U.S.S.G. § 4A1.2(c) for his
prior Mississippi misdemeanor conviction for carrying a concealed weapon
under Mississippi Code Annotated § 97-37-1. He further asserts that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60406

district court erred in imposing a two-level enhancement under U.S.S.G.
§ 2D1.1(b)(1) based on its finding that he possessed a dangerous weapon in
connection with the instant offense.
      We “review a district court’s sentencing guidelines interpretations de
novo and its findings of fact for clear error.” United States v. Rubio, 629 F.3d
490, 492 (5th Cir. 2010). We will “uphold a finding if it is plausible in the light
of the entire record.” Id.
      The district court did not err in imposing a criminal history point under
§ 4A1.2(c) for Williams’s Mississippi conviction for carrying a concealed
weapon. Using the approach set forth in United States v. Lamm, 392 F.3d 130,
132 (5th Cir. 2004) and United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.
1991), the district court compared the elements and the punishments of
Williams’s offense and the excluded offenses of disorderly conduct and
disturbing the peace, then determined that carrying a concealed weapon has
different elements, including possession of a dangerous weapon, and a
graduated punishment scale. See MISS. CODE ANN. §§ 97-35-9 (disturbing the
peace), 97-35-7 (disorderly conduct), 97-37-1 (carrying a concealed weapon).
The district court reasoned that the graduated punishment scale indicated that
Mississippi treats the offense of carrying a concealed weapon as more serious
than disturbing the peace or disorderly conduct. The court also noted that
carrying a concealed weapon has the potential for resulting in violence and
serious bodily injury, but that the other offenses do not implicate the same
concerns. Although Williams did not receive a sentence of imprisonment, the
maximum fine imposed indicates that the state court deemed the offense
serious.   Even though the district court erred by considering Williams’s
possession of a firearm during the instant offense, it did not err in balancing
the factors set forth in Lamm and Hardeman and concluding that Williams’s



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                                 No. 14-60406

conviction for carrying a concealed weapon should be counted in calculating his
criminal history category. See Lamm, 392 F.3d at 132; Hardeman, 933 F.3d at
281.
        Neither did the district court clearly err in imposing the two-level
enhancement under § 2D1.1(b)(1) for Williams’s possession of a firearm in
connection with the instant offense. It adopted the Presentence Report which
provided that Williams admitted that he did not know the confidential source
with whom he was negotiating the transfer of 12 kilograms of cocaine, the
reason that he thought he needed the firearm to provide protection. The court
also found that the firearm was in the vehicle that Williams drove to the hotel
where the drug transaction was to take place and that he presumably would
have transported the cocaine in that vehicle after the transaction. The district
court found that there was a temporal and spatial nexus between the firearm
and the vicinity and time of the drug transaction.        See United States v.
Marquez, 685 F.3d 501, 507 (5th Cir. 2012). The evidence indicates that the
firearm was accessible to protect Williams and the drugs during the
transaction. See United States v. Salado, 339 F.3d 285, 293-94 (5th Cir. 2003);
United States v. Rodriguez, 62 F.3d 723, 724-25 (5th Cir. 1995). Although
Williams presented evidence that he had been the victim of violent crimes in
the past, the district court did not err in finding that those prior crimes were
remote in time. The evidence did not establish that it was clearly improbable
that the firearm was connected with the instant offense.          See § 2D1.1,
comment. (n.3). The district court’s finding that the firearm was connected to
the offense was not clearly erroneous because it was “plausible in the light of
the entire record.” Rubio, 629 F.3d at 492; see Salado, 339 F.3d at 293-94.
        AFFIRMED.




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