Case: 21-50130 Document: 00516051234 Page: 1 Date Filed: 10/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2021
No. 21-50130
consolidated with Lyle W. Cayce
No. 21-50156 Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Antonio Smith,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-218-1
USDC No. 7:20-CR-144-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50130 Document: 00516051234 Page: 2 Date Filed: 10/12/2021
No. 21-50130
c/w No. 21-50156
Defendant-Appellant Antonio Smith appeals the sentence imposed by
the district court following Smith’s guilty plea for possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court also revoked Smith’s supervised release, which he was serving under a
different sentence. Smith’s actions underlying this other conviction were
also the basis of a state charge of aggravated assault with a deadly weapon.
Smith contends that the district court erred in applying a four-level
enhancement for his use or possession of “any firearm or ammunition in
connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B).
Smith pointed out at sentencing that the only evidence supporting this
enhancement was a witness’s statements to police at the time of the alleged
aggravated assault. Smith produced an affidavit from that same witness
recanting her story, but the district court believed that the witness’s original
statement to the police at the time of the incident was more credible.
“The district court’s determination of the relationship between the
firearm and another offense is a factual finding,” which we review for clear
error. United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Here, the
district court’s credibility determination and application of the enhancement
were plausible and not clearly erroneous. See United States v. Oti, 872 F.3d
678, 699 (5th Cir. 2017); United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th
Cir. 1994).
Smith also argues that his firearm and revocation sentences are
unreasonable, both individually and cumulatively, because the district court
failed to state reasons for imposing the sentences despite Smith’s advocacy
for a sentence at the low end of the Guidelines. We apply plain error review
because Smith did not object to the procedural reasonableness of his
sentences on this basis. See United States v. Coto-Mendoza, 986 F.3d 583,
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Case: 21-50130 Document: 00516051234 Page: 3 Date Filed: 10/12/2021
No. 21-50130
c/w No. 21-50156
585-86 (5th Cir. 2021), petition for cert. filed (U.S. Jun. 28, 2021) (No. 20-
8439); United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
The sentencing judge’s reasons for the sentences sufficed “to satisfy
the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356 (2007); see also United States v. Rhine, 637
F.3d 525, 529 (5th Cir. 2011). Smith has therefore not demonstrated any
error, plain or otherwise.
Finally, Smith argues that, under the analysis set forth in United States
v. Lopez, 514 U.S. 549 (1995), § 922(g)(1) exceeds the scope of Congress’s
power under the Commerce Clause and is therefore unconstitutional. He
admits that this argument is foreclosed and is only raised to preserve the
issue. See, e.g., United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
The sentences imposed by the district court are AFFIRMED.
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