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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10985

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHANNON RAY FULBRIGHT,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:08-CR-19-ALL

Before GARWOOD, DENNIS and ELROD, Circuit Judges.

PER CURIAM:*

Shannon Ray Fulbright pleaded guilty pursuant to a written plea

agreement to being a felon in unlawful possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The court sentenced Fulbright at the high end

of the advisory guidelines range to 37 months of imprisonment.

Fulbright argues that the district court erred by enhancing his sentence

under U.S.S.G. § 2K2.1(b)(6) on the basis that he used or possessed the firearm

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2009

Charles R. Fulbruge III

Clerk
No. 08-10985

2

in connection with the unauthorized use of a motor vehicle. Fulbright asserts

that the Government failed to prove that he committed unauthorized use of a

motor vehicle because the evidence did not show that he knew that his use of the

stolen vehicle was unauthorized, as required by TEXAS PENAL CODE § 31.07.

We must determine whether the district court committed any significant

procedural error. See Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597

(2007). A procedural error includes a failure to calculate the proper guidelines

range or the selection of a sentence based upon clearly erroneous facts. Gall, 128

S. Ct. at 597. We review the district court’s guidelines interpretations de novo

and findings of fact for clear error. United States v. Le, 512 F.3d 128, 134 (5th

Cir. 2007), cert. denied, 129 S. Ct. 55 (2008). A finding is clearly erroneous when

“the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. Cooper, 274

F.3d 230, 238 (5th Cir. 2001) (internal quotation marks and citation omitted).

A factual finding is not clearly erroneous if it is plausible in light of the record

as a whole. Id.

Section 2K2.1(b)(6) authorizes a four-level increase where the defendant

possessed the firearm “in connection with” another felony offense. The phrase

“another felony offense” for purposes of § 2K2.1(b)(6), “means any federal, state,

or local offense, other than the explosive or firearms possession or trafficking

offense, punishable by imprisonment for a term exceeding one year, regardless

of whether a criminal charge was brought, or a conviction obtained.” § 2K2.1,

comment. (n.14(C)). The Texas offense of unauthorized use of a motor vehicle

is a state jail felony punishable by up to two years of imprisonment. See TEX.

PENAL CODE §§ 12.35(a), 31.07(a).

The Government must prove the facts necessary for a sentence

enhancement by a preponderance of the evidence. See United States v. Trujillo,

502 F.3d 353, 357 (5th Cir. 2007). The Texas offense of unauthorized use of a

motor vehicle occurs when a person “intentionally or knowingly operates
No. 08-10985

3

another’s . . . motor-propelled vehicle without the effective consent of the owner.”

TEX. PENAL CODE § 31.07(a). Texas law provides that “[c]onsent is not effective

if . . . given by a person the actor knows is not legally authorized to act for the

owner.” TEX. PENAL CODE § 31.01(3)(B).

The owner of the vehicle that Fulbright was driving when he committed

the instant offense stated that she did not know him and that he never had her

permission to drive or use her car. Fulbright initially denied being in the

vehicle, but later admitted to driving the vehicle. He also stated that he had

borrowed the weapon in question from a friend (to go rabbit hunting) and had

placed it in the car. Fulbright stated that he bartered for use of the car with a

man, whom he only knew as “Rob,” in exchange for some “dope.”

The district court did not make an explicit finding that Fulbright knew

that his use of the vehicle was unauthorized; the court, however, implicitly found

that Fulbright had the requisite knowledge when it found that “there has been

a showing, by a preponderance of the evidence, that there was an unauthorized

use of a motor vehicle, and the possession of this firearm was in connection with

that unauthorized use.” A district court may make implicit findings of fact at

sentencing. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).

Fulbright did not present evidence at sentencing in support of his objections, and

the district court approved the relevant part of the PSR. Given the undisputed

facts regarding the circumstances of Fulbright’s use of the car, the district

court’s implicit finding that Fulbright knew that he did not have the effective

consent of the owner to use the car is plausible in light of the record as a whole.

See Cooper, 274 F.3d at 238.

Fulbright next argues that the evidence did not support the district court’s

determination that he committed the firearm possession offense “in connection

with” the unauthorized use of a motor vehicle felony. However, the district

court’s finding that the presence of the loaded firearm in the back seat of the car
No. 08-10985

The written factual basis for Fulbright’s guilty plea specifically stated 1

that Fulbright “did knowingly possess in and affecting interstate and foreign

commerce a firearm.” The government argues that by signing this statement

of facts, Fulbright admitted that he knew that his possession of the firearm was

in or affecting commerce. We doubt, however, that under the circumstances this

is a proper basis for affirmance. The statement in question was made in the

written statement in support of the plea, and the same written statement in

substance advised that knowingly possessing a weapon in or affecting interstate

commerce did not mean that “knowingly” applied to “in or affecting interstate

commerce,” but only applied to possession of the weapon.

4

had the potential of facilitating Fulbright’s unauthorized use of the vehicle is

plausible in light of the record as a whole. See id.; § 2K2.1, comment. (n.14)(A).

Fulbright argues that his conviction should be vacated because the word

“knowingly” in § 924(a)(2) applies not only to the possession of a firearm

proscribed in § 922(g)(1) but also to the fact that such possession was “in or

affecting commerce.” We have rejected this contention many times. See, e.g.,

United States v. Dancy, 861 F.2d 77, 80-81 (5th Cir. 1988); United States v.

Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007); United States v. Cook, 308 Fed

App’x 792 (5th Cir., January 28, 2009). Fulbright asserts that the decision in

Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), overruled our precedent

that would otherwise foreclose this claim. However, Flores-Figueroa involved a

totally different statute, with different wording and structure. In our view,

whether Flores-Figueroa can be extended to overrule our section 924(a)(2)

precedent is a matter for the Supreme Court, or our court en banc, and not this

panel.1

AFFIRMED.