United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 12, 2004
Charles R. Fulbruge III
Clerk
No. 03-20573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN RAY HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-7-ALL
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kevin Ray Hall appeals his conviction and sentence for
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). He argues that the evidence was
insufficient to prove beyond a reasonable doubt that he was a
convicted felon at the time he possessed the firearm. In order
to convict Hall of an offense pursuant to 18 U.S.C. § 922(g)(1),
the Government was required to prove that Hall “(1) has been
convicted of a felony; (2) possessed a firearm in or affecting
*
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that this opinion should not be published and is not precedent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.
No. 03-20573
-2-
interstate commerce; and (3) knew that he was in possession of
the firearm.” United States v. Ferguson, 211 F.3d 878, 885 n.4
(5th Cir. 2000) (internal quotations and citations omitted).
When the evidence is viewed in the light most favorable to the
Government, a rational trier of fact could have found that at the
time Hall possessed the firearm, at 7:30 p.m., on May 1, 2002, he
already had been convicted of a felony offense. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Hall also argues that the evidence was insufficient to
establish the interstate commerce element of 18 U.S.C. § 922(g).
Hall raises his argument solely to preserve it for possible
Supreme Court review, as he acknowledges that his argument is
foreclosed by existing Fifth Circuit precedent. See United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Hall argues, for the first time on appeal, that the district
court erred in calculating his criminal history score, assessing
a total of four criminal history points for each of two prior
offenses committed when he was 17 years old. See U.S.S.G.
§ 4A1.2(d)(2)(A). The parties agree that the plain error
standard of review governs.
The district court plainly erred in assessing the four
criminal history points for offenses committed before Hall was
eighteen years old, because he was released from confinement as
to those offenses more than five years before the commencement of
the instant offense. See U.S.S.G. § 4A1.2(d)(2)(A). Without the
No. 03-20573
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assessment of these four criminal history points, Hall would have
received a criminal history category of IV, instead of V. This,
in turn, would have produced an imprisonment range under the
sentencing guidelines of 63 to 78 months, instead of the 77 to 96
month range used by the district court at sentencing. See
U.S.S.G. Ch.5, Pt. A, Sentencing Table. The error affected
Hall’s substantial rights, as it resulted in his receiving a
sentence of 96 months’ imprisonment, a sentence that exceeded the
maximum sentence under Hall’s appropriate guidelines sentencing
range by 18 months. See United States v. Aderholt, 87 F.3d 740,
744 (5th Cir. 1996). The fairness of the judicial proceeding was
seriously affected because the increase in Hall’s sentence was
erroneous and substantial. See id. Accordingly, we vacate
Hall’s sentence and remand the case for resentencing.
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING.