United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 12, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10294
UNITED STATES OF AMERICA,
P laint iff- Appellee,
versus
MELVIN ODELL MINNITT, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(No. 5:05-CR-085-C)
Before DAVIS and STEWART, Circuit Judges, and CRONE, District Judge.*
PER CURIAM:**
Melvin Minnitt was convicted of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). At sentencing, the district court enhanced his sentence under U.S.S.G. §
2K2.1(b)(5). Minnitt appeals the application of this enhancement.
*
District Judge for the Eastern District of Texas, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2004, Minnitt, believing his wife was having an affair with their neighbor,
Airickison Nelson, called Nelson and told him to come over so Minnitt could shoot him.1 Before
Minnitt made the call, he retrieved a rifle from his bedroom and fired it twice, once from his front
porch and once from his back porch. Nelson and the police arrived at the Minnitt residence at
approximately the same time. Minnitt exited his house unarmed, and Nelson began yelling at him.
Minnitt went back into the house, with the officer following and ordering him to stop. The officer
pointed his gun at Minnitt, who immediately placed his hands on his head. Nelson then entered the
home and began yelling at Minnitt again. Minnitt was arrested at the scene without further incident
and told the officer that he had a gun behind the headboard of his bed. At trial, Minnitt was sentenced
to thirty-three months’ imprisonment, including a sentencing enhancement of four levels under
U.S.S.G. § 2K2.1(b)(5). Minnitt appeals the application of this sentencing enhancement.
II. DISCUSSION2
The Sentencing Guideline at issue, § 2K2.1(b)(5), provides in relevant part: “If the defendant
used or possessed any firearm or ammunition in connection with another felony offense; or possessed
or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense, increase by 4 levels.” A “felony
1
Minnitt actually stated that he was going to “smoke his [Nelson’s] ass.” The district court
inferred that Minnitt’s statement was a threat to shoot Nelson, and Minnitt does not contest this
finding on appeal.
2
While the government objected to the application of the enhancement at the trial level, its
defense of the enhancement on appeal is appropriate because of the differing standards applied on
appeal and in the district court.
2
offense” is defined in the commentary to the Guideline as “any offense (federal, state, or local)
punishable by imprisonment for a term exceeding a year, whether or not a criminal charge was
brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.4 (2005).
Post-Booker, this court reviews the factual findings of the district court for clear error and
its interpretation and application of the Guidelines de novo. United States v. Caldwell, 448 F.3d 287,
290 (5th Cir. 2006). “A district court is permitted to draw reasonable inferences from the facts, and
these inferences are fact-findings reviewed for clear error so long as the enhancement is plausible in
light of the record as a whole.” Id. The district court’s determination that there was a connection
between Minnitt’s possession of the firearm and the felonious behavior is a factual finding reviewed
for clear error. See United States v. Condren, 18 F.3d 1190, 1200 (5th Cir. 1994).
Minnitt argues that the most he could be charged with under Texas law is assault under TEX.
PENAL CODE ANN. § 22.01, a misdemeanor. However, the district court enhanced the sentence
because it found that Minnitt intended that the gun would be used in connection with the aggravated
assault of Nelson, a felony under TEX. PENAL CODE ANN. § 22.02. This use of § 2K2.1(b)(5) is
proper under both the plain language of the statute and under this Circuit’s case law on this issue,
Caldwell, 448 F.3d at 292 (“The plain language of the guideline dictates that the government need
not prove that the firearm was actually used in a specific other felony offense; it is enough that a
defendant had reason to believe that it would be.”). Because it is a factual finding, this court reviews
for clear error the district court’s determination that Minnitt intended to shoot Nelson. Based on
Minnitt’s call to Nelson, his entry into the house (where the gun was) after Nelson arrived, and his
firing of the weapon before Nelson arrived, the district court’s determination was not clearly
erroneous.
3
Minnitt’s use of the weapon also must be “in connection with” aggravated assault for the
sentencing enhancement to have been correctly applied. This court looks to whether the firearm “may
have facilitated or made more dangerous the other felony offense.” United States v. Villegas, 404
F.3d 355, 364 (5th Cir. 2005). Here, the presence of the weapon not only would have facilitated the
aggravated assault but would have been the primary tool for committing the felonious behavior. The
district court did not clearly err in finding that Minnitt possessed the weapon “in connection with”
the possible aggravated assault.
III. CONCLUSION
For the above reasons, we affirm the enhancement of Minnitt’s sentence.
4