     Case: 12-30324       Document: 00512258937         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-30324
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WILLIE J. JENKINS, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:11-CR-68-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Willie J. Jenkins, Jr., appeals his sentence imposed pursuant to his guilty-
plea conviction of: being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (count one); and possession of a firearm with an obliterated
serial number, in violation of 18 U.S.C. § 922(k) (count two). For count one,
Jenkins was sentenced at the bottom of the advisory Guidelines sentencing
range to 63 months’ imprisonment. For count two, he received a concurrent
statutory-maximum term of 60 months’ imprisonment; he was sentenced to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30324

concurrent three-year periods of supervised release. The district court ordered
that the term of imprisonment be served consecutively to an undischarged one-
year term of imprisonment imposed in state court.
      Jenkins contends: the district court erred in overruling his objection to the
probation officer’s recommended four-level increase in his offense level under
Guidleine § 2K2.1(b)(6)(B), for possessing the firearm in connection with another
felony offense, because the Government failed to prove a sufficient connection
between the firearm and another felony offense; and, the court erred in assigning
a base-offense level of 20 under Guideline § 2K2.1(a)(4)(A).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). 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); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Jenkins was convicted in state court of felony drug trafficking in
connection with the instant arrest, and the firearm was found in a footlocker
with drugs and a digital scale. No error has been shown with respect to the
court’s imposing the Guideline § 2K2.1(b)(6)(B) enhancement. See United States
v. Anderson, 559 F.3d 348, 357-58 (5th Cir. 2009) (“When a loaded firearm is
found in close proximity to narcotics, readily available to the defendant, a
connection will usually be found.”).
      Because Jenkins failed to preserve his base-offense-level contention by
presenting it in district court, it is reviewed only for plain error. E.g., United
States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). For reversible plain
error, Jenkins must show a clear or obvious legal error that affected his

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                                  No. 12-30324

substantial rights–ordinarily meaning it affected the outcome of the proceedings
in district court. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does
so, our court will exercise its discretion to remedy the error only if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings”. Id.
(internal quotation marks, citation, and alterations omitted).
      Guideline § 2K2.1, commentary note 10, directs: “For purposes of applying
subsection [(a)(4)(A)], use only those felony convictions that receive criminal
history points under § 4A1.1(a), (b), or (c).” In recommending Jenkins’ base
offense level was 20 under subsection (a)(4)(A), the probation officer relied on
Jenkins’ 1996 conviction for possession of marijuana with intent to distribute.
No criminal history points were assessed for that prior conviction, however.
Therefore, its use in increasing Jenkins’ base offense level was a clear error that
likely affected Jenkins’ substantial rights by increasing his sentence. See United
States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (en banc) (error
affected substantial rights where “we cannot confidently say that the district
court would have imposed the same sentence without it” (internal quotation
marks and citation omitted)). Therefore, as the Government concedes, the
district court committed reversible plain error in determining, under
§ 2K2.1(a)(4)(A), that Jenkins had a base offense level of 20. E.g., Mudekunye,
646 F.3d at 290-91 (reversible plain error where substantial disparity between
imposed sentence and correct Guidelines range). We exercise our discretion to
remedy this error.
      AFFIRMED IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING consistent with this opinion.




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