     Case: 14-11263      Document: 00513248299         Page: 1    Date Filed: 10/27/2015




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

                                                                                 FILED
                                                                            October 27, 2015
                                    No. 14-11263
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHNATHAN RAY HALL, also known as Jonathan Ray Hall,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-25-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Johnathan Ray Hall pleaded guilty to possession of a firearm by a felon
and was sentenced to a prison term of 46 months. Hall argues that the district
court improperly enhanced his sentence under U.S.S.G. § 2K2.1(b)(6) and
imposed a substantively unreasonable sentence.
       We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11263     Document: 00513248299       Page: 2   Date Filed: 10/27/2015


                                  No. 14-11263

States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Section 2K2.1(b)(6)(B) of
the Guidelines provides for a four-level enhancement when the Government
shows by a preponderance of the evidence that a defendant’s possession of a
firearm “facilitated, or had the potential of facilitating another felony offense
and that the defendant used or possessed the firearm in connection with that
offense.” Id. (internal quotation marks and citation omitted). “The district
court’s determination of the relationship between the firearm and another
offense is a factual finding,” which will not be deemed clearly erroneous if it is
plausible in light of the record as a whole. Id.
      The district court found that Hall committed the offense of aggravated
assault when he discharged a loaded firearm and then pointed it at a couple
whom Hall deemed dangerous, despite Hall’s argument that he acted with
justification and in self-defense. Hall contends that the district court erred
because the Government failed to negate his justification defense. He also
objects to the district court’s failure to explicitly find that the Government had
carried its burden and to the district court’s reliance upon the presentence
report (PSR) and Addendum.
      Justification is a defense to aggravated assault in Texas. TEX. PENAL
CODE ANN. § 9.02. If the defendant presents evidence supporting a justification
defense, the state must prove beyond a reasonable doubt that the defendant’s
actions were not justified. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim.
App. 1991). Though the law may not require a person to retreat before using
non-deadly force, “[t]he amount of force used must be in proportion to the force
encountered.” See Tidmore v. State, 976 S.W.2d 724, 728 (Tex. App. 1998). As
the Government argued, Hall’s conduct in firing three shots and then pointing
the gun at a woman was disproportionate and unreasonable. See, e.g., Kelley
v. State, 968 S.W.2d 395, 399-401 (Tex. App. 1998). All the couple did to



                                        2
    Case: 14-11263     Document: 00513248299      Page: 3   Date Filed: 10/27/2015


                                  No. 14-11263

“provoke” this response was to jog down the street, with one wearing a mask
decorated to look like a skeleton. The couple did not display any weapon or
threaten Hall. Accordingly, the district court did not clearly err in applying
the enhancement.
      Hall’s challenges to the district court’s failure to explicitly rule upon his
claim to self-defense and to the court’s reliance upon the PSR and Addendum
were not properly preserved, as Hall neither asked the district court to make
more specific factual findings nor objected to its adoption of the PSR and
Addendum.     Had he done so, the district court could have “clarif[ied] its
reasoning or correct[ed] any potential errors in its understanding of the law at
sentencing.” United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir.
2007). Accordingly, these arguments are subject to plain error review. See
United States v. Fernandez, 770 F.3d 340, 345 (5th Cir. 2014). To establish
plain error, Hall must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct the
error but may do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id. Assuming that the district court
erred, Hall cannot establish that his substantial rights were affected because
the Government adequately refuted his claim to self-defense.
      Hall further argues that the district court abused its discretion when it
denied his motion for a downward departure or variance because he feared
imminent injury to himself or his family and, consequently, the sentence
imposed is substantively unreasonable. We lack jurisdiction to review the
denial of the downward departure because nothing in the record suggests that
the district court believed that it lacked authority to depart. See United States
v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008). As for the court’s refusal to exercise



                                        3
    Case: 14-11263    Document: 00513248299     Page: 4   Date Filed: 10/27/2015


                                 No. 14-11263

its Booker discretion to vary downward, Hall has not established that the
district court abused its discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). It considered Hall’s sentencing arguments, the evidence, and the 18
U.S.C. § 3553(a) factors before determining that a sentence at the low end of
the Guidelines was appropriate.      A sentence that falls within a properly
calculated guidelines range is entitled to a presumption of reasonableness,
which Hall has failed to rebut. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      AFFIRMED.




                                       4
