Case: 09-41176 Document: 00511189772 Page: 1 Date Filed: 07/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2010
No. 09-41176
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOE MCNABB,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-543-2
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Joe McNabb appeals the 293-month sentence imposed following his guilty
plea convictions to aiding and abetting in the possession of eight stolen firearms,
stealing 20 firearms from a licensed firearms dealer, and being a felon in
possession of 20 firearms. McNabb argues that the district court erred in
enhancing his offense level pursuant to U.S.S.G. § 2K2.1(b)(6) based on the use
of a firearm in connection with another felony offense, burglary of a building.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41176 Document: 00511189772 Page: 2 Date Filed: 07/30/2010
No. 09-41176
The Government contends that McNabb waived this argument in the district
court. However, the record does not reflect that McNabb affirmatively
relinquished his right to assert an objection to the enhancement. See United
States v. Olano, 507 U.S. 725, 733 (1993).
McNabb makes specific arguments on appeal that he did not make in the
district court. Therefore, review of those arguments is for plain error. See
United States v Guerrero-Robledo, 565 F.3d 940, 946 (5th Cir.), cert. denied, 130
S. Ct. 227 (2009).
McNabb argues for the first time on appeal that under Texas law his
offense of burglary was complete when he entered the gun shop with the intent
to steal and, thus, the subsequently stolen firearms could not be used to
facilitate a crime already committed. He argues that a plain reading of the
Guidelines implies that there must be a second crime committed before imposing
the enhancement.
Section 2K2.1(b)(6) authorizes a four-level increase of a defendant’s offense
level “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” Both the commentary following this
Guideline and this court’s interpretation of the Guideline support this
enhancement if a firearm is obtained contemporaneously with the commission
of a burglary offense. See United States v. Armstead, 114 F.3d 504, 512-13 (5th
Cir. 1997); U.S.S.G. § 2K2.1, comment. (n. 14(B)).
Insofar as McNabb argues that the possession of the firearm was not
separate in time and conduct from the burglary, this court has rejected the
argument that the other felony offense must be distinct from the possession of
the weapon. See United States v. Perez, 585 F.3d 880, 886-87 (5th Cir. 2009);
Armstead, 114 F.3d at 512.
The district court did not plainly err in enhancing McNabb’s offense level
pursuant to § 2K2.1(b)(6). See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). The sentence imposed is AFFIRMED.
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