     Case: 10-50440 Document: 00511343386 Page: 1 Date Filed: 01/07/2011




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

                                                 FILED
                                                                           January 7, 2011
                                     No. 10-50440
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WILLIAM ALLEN GINN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CR-259-1


Before REAVLEY, DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       William Allen Ginn appeals the 48-month sentence imposed following his
guilty plea conviction for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Ginn argues that the district court erred in applying, over
his objection, a four-level enhancement for possession of the firearm in
connection with another felony, pursuant to U.S.S.G. § 2K2.1(b)(6).
       We review the sentence for an abuse of discretion and must determine
whether the district court committed any significant procedural errors, such as

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50440

improperly calculating the Guidelines range. Gall v. United States, 552 U.S. 38,
51 (2007).   In doing so, we review the district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).
      Section § 2K2.1(b)(6) provides that the base offense level for a firearms
offense should be increased by four levels “[i]f the defendant used or possessed
any firearm or ammunition in connection with another felony offense.” For this
enhancement to be applied, the Government needed to establish by a
preponderance of the evidence, inter alia, that Ginn committed another felony
offense. See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied,
129 S. Ct. 2814 (2009).
      According to the factual basis and the presentence report, Ginn shot the
firearm into the air during an argument with another man. At sentencing, the
other man, Brandon Wood, testified that Ginn held the gun at his side during
the argument but did not point it at Wood. When Wood suggested that they
fight without weapons, Ginn said, “I don’t fight. I shoot.” Ginn, who was holding
the gun in his left hand, then “discharged the weapon to the left . . . up in the
air” in an apparent attempt to scare Wood. Ginn then walked away. There was
nobody in the direction that Ginn shot the gun and the closest building in that
direction was 200 yards away.
      The Government argued that this conduct fit best under Texas Penal Code
§ 22.05, deadly conduct, which is a felony when a person knowingly discharges
a firearm at or in the direction of one or more individuals. The district court
found “that the probation officer has appropriately added the four points and
that the firearm was possessed in connection with the felony under Texas state
law as [the Government attorney] just outlined.”
      The discharge of the firearm at or in the direction of an individual is an
element of the offense of deadly conduct under § 22.05(b)(1). Wheaton v. State,
129 S.W.3d 267, 272-73 (Tex. App. 2004). There is no evidence in the record that

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                                  No. 10-50440

Ginn discharged the firearm at or in the direction of Wood; indeed, Wood
testified that Ginn did not fire the gun at him or in his direction but up and to
the left of him. Wood did not testify that he believed that Ginn was shooting at
him or in his direction or that the bullet passed close to him. Contra Phillips v.
State, 2007 WL 2127185, *2-*4 (Tex. App. 2007) (upholding deadly conduct
conviction where defendant pointed gun and fired it in direction of another, who
testified that the bullet was so close that he heard it “whiz” past him). The
district court’s finding that Ginn committed the offense of deadly conduct is not
plausible in light of the record as a whole and is clearly erroneous. See United
States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). Accordingly, the district
court erred in applying the four-level enhancement pursuant to § 2K2.1(b)(6).
      The Government has not met its burden of establishing that this error is
harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009); cf. United States v. Sarmiento-Funes, 374 F.3d 336, 344-45 & n.12 (5th
Cir. 2004) (declining to address whether an offense that did not qualify as a
crime of violence for purposes of § 2L1.2 enhancement nonetheless qualified as
an aggravated felony under different subsection, noting that “[i]t is for the
district court to resolve in the first instance . . . .”). Accordingly, we VACATE
Ginn’s sentence and REMAND for resentencing.




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