     Case: 18-10061       Document: 00514795527         Page: 1     Date Filed: 01/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                       No. 18-10061                           FILED
                                                                        January 15, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                  Plaintiff - Appellee
v.

DENNIS DURAY JOHNSON

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                       for the Northern District of Texas,
                             USDC No. 4:17-CR-124-1


Before SMITH, BARKSDALE, and HO, Circuit Judges.
PER CURIAM:*
       Regarding his guilty-plea conviction and sentence of 71 months’
imprisonment for unlawful possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), Dennis Duray Johnson contests two aspects of his sentence: the
district court’s applying an enhancement under Sentencing Guideline
§ 2K2.1(b)(6)(B) for use of a firearm “in connection with another felony offense”;




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-10061      Document: 00514795527       Page: 2   Date Filed: 01/15/2019



                                     No. 18-10061
and its not ordering his sentence to run concurrently with a claimed
“anticipated” state sentence, in violation of Guideline § 5G1.3(c). AFFIRMED.
                                          I.
      On 15 January 2017, Texas authorities responding to a single-vehicle
accident found Johnson, the only occupant, pinned in the driver’s seat. His
backpack contained, among other things, marihuana, cash, and a pistol with
four rounds of ammunition. (As described in the presentence investigation
report (PSR), and discussed infra, Johnson had used the same pistol on 14
January in an aggravated robbery.)
      Regarding his possession of that firearm on 15 January, Johnson had a
prior conviction for felony aggravated assault with a deadly weapon in Tarrant
County, Texas, in 2008. Based on that predicate offense, Johnson was indicted
in this case for unlawful possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He pleaded guilty to the one-count indictment.
      The   PSR,     inter   alia,   recommended    a   Guideline   § 2K2.1(b)(6)(B)
enhancement. Johnson objected to the enhancement, contending: his possession
of marihuana on the day of his 15 January vehicle-accident was not a felony
offense; and the aggravated robbery committed with the same unlawfully-
possessed firearm on 14 January was not relevant conduct.
      At sentencing, the court heard argument before overruling Johnson’s
objections, adopting the PSR, and sentencing Johnson above the advisory
Guidelines sentencing range. (During the hearing, the court made a comment
Johnson relies upon—for the first time on appeal—to claim the court, for the then-
uncharged 14 January aggravated robbery, “actually anticipated” a state
sentence, requiring application of Guideline § 5G1.3(c), and imposition of any
federal sentence to run concurrently with a state sentence.)




                                          2
    Case: 18-10061     Document: 00514795527      Page: 3   Date Filed: 01/15/2019



                                  No. 18-10061
                                        II.
      For the first of his two claims on appeal, and as he did in district court,
Johnson presents two challenges to the imposition of the enhancement: the
14 January aggravated robbery was not relevant conduct; and his possession
of marihuana on 15 January was a misdemeanor, not a requisite felony. And—
as noted, for the first time on appeal—Johnson asserts the court erred in not
“anticipating” a state sentence based on the then-uncharged aggravated
robbery; and, instead, should have ordered his federal sentence to run
concurrently with the “anticipated” state sentence.
      Although post-Booker, the 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). As reflected above, Johnson claims only procedural error.
                                        A.
      The court may impose a sentencing enhancement under § 2K2.1(b)(6)(B)
if defendant “used or possessed any firearm . . . in connection with another
felony offense”. U.S.S.G. § 2K2.1(b)(6)(B). The enhancement can be satisfied
by multiple factual scenarios, as explained by the Advisory Committee notes.
Johnson’s § 2K2.1(b)(6)(B) enhancement could be satisfied, inter alia, by the
“relevant conduct” of using the firearm for the 14 January aggravated robbery,
cmt. n.14(E)(i), or because the firearm was found in “close proximity to drugs”
on 15 January, cmt. n.14(B).
                                        3
    Case: 18-10061    Document: 00514795527     Page: 4   Date Filed: 01/15/2019



                                 No. 18-10061
      The PSR stated:      Johnson had committed another firearm-related
offense the day before his vehicle-accident; and that offense served as a
“relevant conduct” basis for the enhancement. U.S.S.G. § 2K2.1(b)(6)(B) cmt.
n.14(E)(i). (Although not presented expressly in the PSR, the parties address
whether the enhancement could also be satisfied by the firearm’s discovery on
15 January in “close proximity to drugs”.       U.S.S.G. § 2K2.1(b)(6)(B) cmt.
n.14(B). As discussed infra, we need not reach this close-proximity question,
because the relevant-conduct enhancement was proper.)
      Whether defendant possessed a firearm in connection with another
felony for purposes of § 2K2.1(b)(6)(B) is a factual finding. United States v.
Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citation omitted). As stated, the
district court’s factual findings and inferences for Guidelines purposes are
reviewed for clear error. United States v. Alcantar, 733 F.3d 143, 146 (5th Cir.
2013), cert. denied 572 U.S. 1028 (2014). “A factual finding is not clearly
erroneous if it is plausible in [the] light of the record as a whole.” Coleman,
609 F.3d at 708 (citation omitted).
                                       1.
      As presented in the adopted PSR, officers responded to an aggravated-
robbery call on 14 January 2017 at an apartment complex, identifying three
victims (two men and a woman). The two men were bleeding from visible
injuries on their faces. They told officers they smoked marihuana regularly,
and earlier that week had purchased a half ounce from their regular supplier,
Johnson; they failed to timely pay Johnson for the marihuana; and he began
sending threatening text messages, declaring he “wanted his money or ‘there
would be trouble’”.
      On 14 January, the day before his vehicle-accident, Johnson and three
unidentified accomplices, wearing masks or bandanas to obscure their faces
and brandishing firearms, approached the three victims in the apartment
                                       4
    Case: 18-10061      Document: 00514795527       Page: 5   Date Filed: 01/15/2019



                                   No. 18-10061
parking lot; Johnson ordered the victims back into the apartment, forced them
to lie face-down on the floor, and robbed them; and, while the victims were
lying on the floor, Johnson and his accomplices pistol-whipped and kicked
them. Laboratory test results concluded blood and the victims’ DNA were on
the pistol recovered from the vehicle-accident on 15 January. In short, the
pistol had been used in the 14 January aggravated robbery.
      For deciding whether, through the above-described “relevant conduct”
scenario, Johnson “used or possessed any firearm . . . in connection with
another felony offense” for purposes of the § 2K2.1(b)(6)(B) enhancement,
“relevant conduct” is defined by the Guidelines. See U.S.S.G. § 1B1.3(a). The
conduct includes those “acts . . . committed, aided, abetted, [or] . . . induced . . .
by the defendant”, Guideline § 1B1.3(a)(1)(A), or those which were “part of the
same course of conduct or common scheme or plan as the offense of conviction”,
Guideline § 1B1.3(a)(2).
      To qualify as part of a “common scheme or plan” or “course of conduct”,
the acts “must be substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common purpose, or
similar modus operandi”, or if they are “sufficiently . . . related” as to conclude
“they are part of a single episode, spree, or ongoing series of offenses”. U.S.S.G.
§ 1B1.3 cmt. n.5(B). Factors used in making this determination include “the
degree of similarity of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses”. U.S.S.G. § 1B1.3 cmt. n.5(B)(ii).
      Based on the factors in § 1B1.(3)(a), Johnson contends the 14 January
aggravated robbery does not constitute relevant conduct for purposes of the
enhancement,      including    because    it   is   too   attenuated.      Guideline
§ 2K2.1(b)(6)(B) cmt. n.14(E)(i), however, expressly supports application of the
enhancement.      See Alcantar, 733 F.3d at 147 (Guideline notes “‘[are]
authoritative unless [they] violate[] the Constitution or a federal statute, or
                                          5
    Case: 18-10061    Document: 00514795527     Page: 6   Date Filed: 01/15/2019



                                 No. 18-10061
[are] inconsistent with, or a plainly erroneous reading of, that [G]uideline’”.
(alterations in original) (quoting United States v. Miller, 607 F.3d 144, 148 n.2
(5th Cir. 2010))). The commentary describes a situation in which defendant is
found in “unlawful[] possess[ion]” of a firearm “on October 15”, and the
sentencing court determines defendant used the same firearm “in connection
with a robbery” “on the preceding February 10”, and notes the enhancement
could apply if the two offenses are “part of the same course of conduct or
common scheme or plan”. U.S.S.G. § 2K2.1 cmt. n.14(E)(i).
      The district court did not err in applying the enhancement because it did
not clearly err in finding Johnson’s firearm was used “in connection with
another felony offense” pursuant to § 2K2.1(b)(6)(B). See U.S.S.G. § 1B1.3 cmt.
n.5(B) (describing relevant conduct). Here, the temporal difference is only one
day. Further, at all relevant times, Johnson was a convicted felon in possession
of a firearm. Johnson unlawfully possessed the firearm and used it on 14
January in furtherance of the collection of a drug debt, which is “relevant
conduct” to his unlawful possession of the same firearm in a backpack filled
with drug paraphernalia the next day, when his vehicle-accident occurred.
Finally, “possession of the same, distinct firearm when arrested[,] and on the
previous day in a robbery[,] raises an inference of continuous possession”,
United States v. Hope, 545 F.3d 293, 297 (5th Cir. 2008) (footnote omitted),
which supports application of the enhancement as a “common scheme or plan”
under Guideline § 1B1.3 cmt. n.5(B)(i).
                                       2.
      Following Johnson’s accident on 15 January, officers recovered from his
backpack, inter alia, 1.67 ounces (47.34 grams) of marihuana, one glass pipe,
one electronic scale, one plastic baggie containing numerous small plastic
baggies, and a Sig Sauer, Model P238, .380-caliber pistol with four rounds of
ammunition. As noted, Guideline § 2K2.1(b)(6)(B) also applies when “a firearm
                                       6
    Case: 18-10061      Document: 00514795527       Page: 7    Date Filed: 01/15/2019



                                    No. 18-10061
is found in close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia” because “the presence of the firearm has the potential of
facilitating another felony offense”, Guideline § 2K2.1 cmt. n.14(B) (emphasis
added).
      Johnson insists the enhancement, based on close proximity, cannot apply
because he possessed only a misdemeanor-quantity of drugs. As stated, we
need not reach this issue, because the enhancement is satisfied by Johnson’s
relevant conduct.
                                          B.
      For the drugs and related materials, as well as the pistol, found in
Johnson’s backpack after his 15 January accident, he was charged by the State
with possession of marihuana and unlawful possession of a firearm by a felon;
those charges, however, were dismissed prior to sentencing in this case on 4
January 2018. But, subsequent to sentencing, the State on 20 February 2018
indicted Johnson on six counts related to the 14 January aggravated robbery.
      At sentencing, the court tentatively overruled the objection to the
§ 2K2.1(b)(6)(B) enhancement and heard additional argument.                  Johnson
asserted the facts in the PSR concerning the 14 January aggravated robbery
were unreliable, stating “Tarrant County has had this case for almost one
calendar year and has not even thought to put it in front of a grand jury”. The
court responded: “Don’t you think that’s because they knew he was coming
here?”
      Based on that response, Johnson asserts the court “actually anticipated”
a state sentence at the time of federal sentencing, requiring application of
Guideline § 5G1.3(c): “If . . . a state term of imprisonment is anticipated to result
from another offense that is relevant conduct to the instant offense of conviction
. . . , the sentence . . . shall be imposed to run concurrently to the anticipated term
of imprisonment.” (Emphasis added.)
                                          7
    Case: 18-10061      Document: 00514795527      Page: 8    Date Filed: 01/15/2019



                                   No. 18-10061
      When, as here, the district court is silent at sentencing on whether a
sentence runs concurrently or consecutively to another sentence, it is
presumed they run consecutively. United States v. Candia, 454 F.3d 468, 475
(5th Cir. 2006); Jones v. Joslin, 635 F.3d 673, 674–75 (5th Cir. 2011). At
sentencing, defendant may request a concurrent sentence, Candia, 454 F.3d at
472, or object to the imposition of consecutive sentences, United States v.
Garcia, 517 F. App’x 225, 225 (5th Cir. 2013).
      If, however, defendant “do[es] not object to the” district court’s ordering
“consecutive sentences . . .[,] we review only for plain error”. United States v.
Nava, 762 F.3d 451, 452 (5th Cir. 2014). As noted, Johnson did not preserve
this issue in district court. Therefore, plain-error review applies. (The parties
agree; but that, of course, is not determinative of our standard of review.
United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc).)
      Under the plain-error standard, Johnson must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id.
      The question whether a district court “anticipates” a state sentence when
state charges are not yet filed is one of first impression in this circuit, see, e.g.,
United States v. Olmeda, 894 F.3d 89, 92 (2d Cir. 2018) (only circuit to address
this issue), and, therefore, cannot be decided on plain-error review, see United
States v. Jackson, 549 F.3d 963, 978 (5th Cir. 2008); see also United States v.
Hull, 160 F.3d 265, 272 (5th Cir. 1998). This is because, when an issue of first
impression is involved, “any error was not plain” (clear or obvious). Jackson,
549 F.3d at 978. In other words, Johnson’s assertion Guideline § 5G1.3(c)
should have been applied, based on his position that the district court
“anticipated” a state sentence, does not constitute the requisite clear or obvious
                                          8
    Case: 18-10061    Document: 00514795527     Page: 9   Date Filed: 01/15/2019



                                 No. 18-10061
error, as the assertion “requires the extension of [our court’s] precedent, [so]
any potential error could not have been ‘plain’”. Hull, 160 F.3d at 272.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




                                       9
