IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50440

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WILLIAM ALLEN GINN,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:09-CR-259-1

Before REAVLEY, DENNIS and CLEMENT, Circuit Judges.

PER CURIAM:

*

William Allen Ginn appeals the 48-month sentence imposed following his

guilty plea conviction for being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). Ginn argues that the district court erred in applying, over

his objection, a four-level enhancement for possession of the firearm in

connection with another felony, pursuant to U.S.S.G. § 2K2.1(b)(6).

We review the sentence for an abuse of discretion and must determine

whether the district court committed any significant procedural errors, such as

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-50440

improperly calculating the Guidelines range. Gall v. United States, 552 U.S. 38,

51 (2007). In doing so, we review the district court’s application of the

Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).

Section § 2K2.1(b)(6) provides that the base offense level for a firearms

offense should be increased by four levels “[i]f the defendant used or possessed

any firearm or ammunition in connection with another felony offense.” For this

enhancement to be applied, the Government needed to establish by a

preponderance of the evidence, inter alia, that Ginn committed another felony

offense. See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied,

129 S. Ct. 2814 (2009).

According to the factual basis and the presentence report, Ginn shot the

firearm into the air during an argument with another man. At sentencing, the

other man, Brandon Wood, testified that Ginn held the gun at his side during

the argument but did not point it at Wood. When Wood suggested that they

fight without weapons, Ginn said, “I don’t fight. I shoot.” Ginn, who was holding

the gun in his left hand, then “discharged the weapon to the left . . . up in the

air” in an apparent attempt to scare Wood. Ginn then walked away. There was

nobody in the direction that Ginn shot the gun and the closest building in that

direction was 200 yards away.

The Government argued that this conduct fit best under Texas Penal Code

§ 22.05, deadly conduct, which is a felony when a person knowingly discharges

a firearm at or in the direction of one or more individuals. The district court

found “that the probation officer has appropriately added the four points and

that the firearm was possessed in connection with the felony under Texas state

law as [the Government attorney] just outlined.”

The discharge of the firearm at or in the direction of an individual is an

element of the offense of deadly conduct under § 22.05(b)(1). Wheaton v. State,

129 S.W.3d 267, 272-73 (Tex. App. 2004). There is no evidence in the record that

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Ginn discharged the firearm at or in the direction of Wood; indeed, Wood

testified that Ginn did not fire the gun at him or in his direction but up and to

the left of him. Wood did not testify that he believed that Ginn was shooting at

him or in his direction or that the bullet passed close to him. Contra Phillips v.

State, 2007 WL 2127185, *2-*4 (Tex. App. 2007) (upholding deadly conduct

conviction where defendant pointed gun and fired it in direction of another, who

testified that the bullet was so close that he heard it “whiz” past him). The

district court’s finding that Ginn committed the offense of deadly conduct is not

plausible in light of the record as a whole and is clearly erroneous. See United

States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). Accordingly, the district

court erred in applying the four-level enhancement pursuant to § 2K2.1(b)(6).

The Government has not met its burden of establishing that this error is

harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.

2009); cf. United States v. Sarmiento-Funes, 374 F.3d 336, 344-45 & n.12 (5th

Cir. 2004) (declining to address whether an offense that did not qualify as a

crime of violence for purposes of § 2L1.2 enhancement nonetheless qualified as

an aggravated felony under different subsection, noting that “[i]t is for the

district court to resolve in the first instance . . . .”). Accordingly, we VACATE

Ginn’s sentence and REMAND for resentencing.

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