     Case: 19-10001      Document: 00515278187         Page: 1    Date Filed: 01/21/2020




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

                                    No. 19-10001
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                     January 21, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

GARIAN KING,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-189-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Garian King appeals his guilty plea conviction and 120-month sentence
for possession of a firearm by a felon pursuant to 18 U.S.C. §§ 922(g)(1) and
924(a)(2). King challenges his sentence on the ground that the district court’s
imposition of a four-level enhancement of his offense level under U.S.S.G.
§ 2K2.1(b)(6)(B)—which applies where the defendant “used or possessed any
firearm . . . in connection with another felony offense”—was erroneous.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10001

      King first argues that the finding in the presentence report (PSR), which
the district court adopted, that King committed the Texas offense of
aggravated assault with a deadly weapon, see Texas Penal Code §§ 22.01(a)(2)
and 22.02(a)(2), was unreliable because it was based on conflicting witness
accounts. Our review of this issue is for clear error, and we will not reverse
unless the district court’s account of the evidence is implausible in light of the
record as a whole. United States v. Harris, 740 F.3d 956, 966-67 (5th Cir.
2014). In this case, the evidence concerning the aggravated assault consisted
of (i) two witness statements that confirmed that King brandished a firearm
and threatened the victims; (ii) two witness statements that confirmed that
King displayed a firearm and, while not dispositive, supported a reasonable
inference that King threatened the victims, see United States v. De Jesus-
Ojeda, 515 F.3d 434, 442 (5th Cir. 2008); and (iii) King’s statement denying
that he threatened the victims, see, e.g., United States v. Gutierrez-Mendez, 752
F.3d 418, 429 (5th Cir. 2014). Given the “significant discretion” accorded to
the district court “in evaluating reliability,” United States v. Young, 981 F.2d
180, 185 (5th Cir. 1992), King has failed to show that the district court’s
reliance on the PSR, or the court’s finding that King committed the Texas
offense of aggravated assault with a deadly weapon, was clear error, see Harris,
740 F.3d at 966-67.
      King next argues that the district court erred by failing to make factual
findings regarding the veracity of a written statement of a witness, which King
claims was evidence that he did not commit aggravated assault. Because King
failed to object on this ground in the district court, our review is for plain error.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Federal Rule of Criminal Procedure 32 directs a district court to rule on “any
disputed portion of the presentence report or other controverted matter.” FED.



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                                   No. 19-10001

R. CRIM. P. 32(i)(3)(B); see U.S.S.G. § 6A1.3(b), p.s. A defendant generally is
provided adequate notice of the district court’s resolution of disputed facts
when the court adopts the findings of the PSR. United States v. Mora, 994 F.2d
1129, 1141 (5th Cir. 1993). Here, the district court properly considered the
witness’s written statement, made findings in accordance with Rule 32(i) and
§ 6A1.3, explicitly overruled King’s objection, and adopted the factual findings
contained in the PSR. Therefore, King’s argument that the district court erred
under Rule 32 is without merit. See Mora, 994 F.2d at 1141.
      Lastly, King challenges his conviction on the ground that the factual
basis for his conviction was lacking proof that he knew, at the time of his
offense, that he was a convicted felon. See Rehaif v. United States, 139 S. Ct.
2191, 2194 (2019). We review his argument for plain error. See Puckett v.
United States, 556 U.S. 129, 134 (2009). Although the factual resume and plea
colloquy standing alone do not establish that King knew, when he committed
his present offense, that he had been convicted of an offense punishable by
more than one year of imprisonment, the record as a whole establishes that he
had such knowledge. See United States v. Ortiz, 927 F.3d 868, 872-73 (5th Cir.
2019). Because King’s PSR established, without any challenge by King, that
he had been convicted of offenses punishable by more than one year of
imprisonment, and his counsel admitted at sentencing that King understood
that “he wasn’t supposed to have a firearm,” the question whether King knew
of his status as a convicted felon is at least subject to reasonable dispute. See
Puckett, 556 U.S. at 134-35. Accordingly, King has failed to show plain error.
See Puckett, 556 U.S. at 134-35.
      AFFIRMED.




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