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

                                                FILED
                                                                October 7, 2009
                                No. 08-10985
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

SHANNON RAY FULBRIGHT,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:08-CR-19-ALL


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
      Shannon Ray Fulbright pleaded guilty pursuant to a written plea
agreement to being a felon in unlawful possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). The court sentenced Fulbright at the high end
of the advisory guidelines range to 37 months of imprisonment.
      Fulbright argues that the district court erred by enhancing his sentence
under U.S.S.G. § 2K2.1(b)(6) on the basis that he used or possessed the firearm



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10985

in connection with the unauthorized use of a motor vehicle. Fulbright asserts
that the Government failed to prove that he committed unauthorized use of a
motor vehicle because the evidence did not show that he knew that his use of the
stolen vehicle was unauthorized, as required by T EXAS P ENAL C ODE § 31.07.
      We must determine whether the district court committed any significant
procedural error. See Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597
(2007). A procedural error includes a failure to calculate the proper guidelines
range or the selection of a sentence based upon clearly erroneous facts. Gall, 128
S. Ct. at 597. We review the district court’s guidelines interpretations de novo
and findings of fact for clear error. United States v. Le, 512 F.3d 128, 134 (5th
Cir. 2007), cert. denied, 129 S. Ct. 55 (2008). A finding is clearly erroneous when
“the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Cooper, 274
F.3d 230, 238 (5th Cir. 2001) (internal quotation marks and citation omitted).
A factual finding is not clearly erroneous if it is plausible in light of the record
as a whole. Id.
      Section 2K2.1(b)(6) authorizes a four-level increase where the defendant
possessed the firearm “in connection with” another felony offense. The phrase
“another felony offense” for purposes of § 2K2.1(b)(6), “means any federal, state,
or local offense, other than the explosive or firearms possession or trafficking
offense, punishable by imprisonment for a term exceeding one year, regardless
of whether a criminal charge was brought, or a conviction obtained.” § 2K2.1,
comment. (n.14(C)). The Texas offense of unauthorized use of a motor vehicle
is a state jail felony punishable by up to two years of imprisonment. See T EX.
P ENAL C ODE §§ 12.35(a), 31.07(a).
      The Government must prove the facts necessary for a sentence
enhancement by a preponderance of the evidence. See United States v. Trujillo,
502 F.3d 353, 357 (5th Cir. 2007). The Texas offense of unauthorized use of a
motor vehicle occurs when a person “intentionally or knowingly operates

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another’s . . . motor-propelled vehicle without the effective consent of the owner.”
T EX. P ENAL C ODE § 31.07(a). Texas law provides that “[c]onsent is not effective
if . . . given by a person the actor knows is not legally authorized to act for the
owner.” T EX. P ENAL C ODE § 31.01(3)(B).
      The owner of the vehicle that Fulbright was driving when he committed
the instant offense stated that she did not know him and that he never had her
permission to drive or use her car. Fulbright initially denied being in the
vehicle, but later admitted to driving the vehicle. He also stated that he had
borrowed the weapon in question from a friend (to go rabbit hunting) and had
placed it in the car. Fulbright stated that he bartered for use of the car with a
man, whom he only knew as “Rob,” in exchange for some “dope.”
      The district court did not make an explicit finding that Fulbright knew
that his use of the vehicle was unauthorized; the court, however, implicitly found
that Fulbright had the requisite knowledge when it found that “there has been
a showing, by a preponderance of the evidence, that there was an unauthorized
use of a motor vehicle, and the possession of this firearm was in connection with
that unauthorized use.” A district court may make implicit findings of fact at
sentencing. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).
Fulbright did not present evidence at sentencing in support of his objections, and
the district court approved the relevant part of the PSR. Given the undisputed
facts regarding the circumstances of Fulbright’s use of the car, the district
court’s implicit finding that Fulbright knew that he did not have the effective
consent of the owner to use the car is plausible in light of the record as a whole.
See Cooper, 274 F.3d at 238.
      Fulbright next argues that the evidence did not support the district court’s
determination that he committed the firearm possession offense “in connection
with” the unauthorized use of a motor vehicle felony. However, the district
court’s finding that the presence of the loaded firearm in the back seat of the car



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had the potential of facilitating Fulbright’s unauthorized use of the vehicle is
plausible in light of the record as a whole. See id.; § 2K2.1, comment. (n.14)(A).
      Fulbright argues that his conviction should be vacated because the word
“knowingly” in § 924(a)(2) applies not only to the possession of a firearm
proscribed in § 922(g)(1) but also to the fact that such possession was “in or
affecting commerce.” We have rejected this contention many times. See, e.g.,
United States v. Dancy, 861 F.2d 77, 80-81 (5th Cir. 1988); United States v.
Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007); United States v. Cook, 308 Fed
App’x 792 (5th Cir., January 28, 2009). Fulbright asserts that the decision in
Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), overruled our precedent
that would otherwise foreclose this claim. However, Flores-Figueroa involved a
totally different statute, with different wording and structure. In our view,
whether Flores-Figueroa can be extended to overrule our section 924(a)(2)
precedent is a matter for the Supreme Court, or our court en banc, and not this
panel.1
      AFFIRMED.




      1
        The written factual basis for Fulbright’s guilty plea specifically stated
that Fulbright “did knowingly possess in and affecting interstate and foreign
commerce a firearm.” The government argues that by signing this statement
of facts, Fulbright admitted that he knew that his possession of the firearm was
in or affecting commerce. We doubt, however, that under the circumstances this
is a proper basis for affirmance. The statement in question was made in the
written statement in support of the plea, and the same written statement in
substance advised that knowingly possessing a weapon in or affecting interstate
commerce did not mean that “knowingly” applied to “in or affecting interstate
commerce,” but only applied to possession of the weapon.

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